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Pomata Investment Ltd v Utpagarea [2020] PGSC 165; SC1943 (21 May 2020)

SC1943

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCM NOS. 36 & 37 OF 2017 (CONSOLIDATED PURSUANT TO ORDERS MADE ON 03.04.2019)


BETWEEN:
POMATA INVESTMENT LIMITED
First Appellant


AND:
GILFORD LIMITED
Second Appellant


AND
BOSCO UTPAGAREA & NORBERT PAMESTO For themselves and on behalf of the Landowner Clan of the Marana Land Area in West Pomio District, East New Britain Province
First Respondents


AND
LUTHER SIPISON, SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Respondent


AND:
HON. ALLEN BENNY, MINISTER FOR LANDS & PHYSICAL PLANNING
Third Respondent


AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent


Waigani: Gavara-Nanu, Kariko and Logan JJ
2019: 16th December
2020: 21st May


APPEALS AND REVIEWS – Judicial review proceedings – National Court Rules; Order 16 - Application for leave - Grant of leave – Appeal against grant of Leave - Supreme Court Rules, 2012; Order 10 – Exercise of discretion by the primary judge to grant leave – Whether exercise of discretion proper.


Cases cited:


Aircare v. Coordinated Air Services [1988-89] PNGLR 549
Alina Sara Bean v. Ian Maxwell Bean [1980] PNGLR 307; SC187
Aloys Kingsly Golu v. NEC (2011) N4425
Curtain Bros (PNG) Ltd v. UPNG (2005) SC788
Eamas Estate v. Mea [1993] PNGLR 219
Gifford Limited v. Pavol (SCA 40 of 2011)
Government of Papua New Guinea and Davis v. Baker [1977] PNGLR 386
GR Logging v. Dotaona (2018) PGSC 34; SC1690
Innovest Ltd v. Hon. Patrick Pruaitch & The State (2014) N5949
Isaac Lupari v. Sir Michael Somare, MP (2010) SC1130
John Soto v. Our Real Estate Ltd (2018) SC1701
Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (2011) SC1120
Leo Maniva & Ors v. Aron Malijiwi & Ors (2013) N5687
Mathew Vingome v. John Diala (2014) N5710
Mudge& Mudge v. Secretary for Lands [1985] PNGLR 387
NTN v. Board of the Post and Telecommunication Corp. [1987] PNGLR 70
Pabe Uwi v. Ehau [1965-66] PNGLR 404
Paga No.36 Ltd v. Eleadona (2018) SC1671
Papua Club Inc v. Nusaum Holdings Ltd (No.2) (2004) N2603
Philip v. Tiliyago (2019) SC1783
Sekusu Sisapi Land Group Inc. v. Turama Forest Industries Ltd (2010) SC1072
Tau Gumu v. Papua New Guinea Banking Corporation Limited (2002) N2251
Telikom PNG Limited v. ICCC (2008) SC906
The National Council of Young Mens' Christian Association of Papua New Guinea Inc. v. Firms Services Ltd & Ors (2017) SC1596
Tigan Malewo v. Keith Faulkner (2009) SC960
Timbani Logai v. Steven Maken & The State (2008) N4021
Wek v. Sobol Trading (2016) SC1535
William Chilen v. The State (2011) SC1099


Overseas Cases cited:
Breskvar v. Wall (1971) 126 C.L.R 376
Fraser v. Walker [1967] AC 569
Gronow v. Gronow [1979] HCA 63; (1979) 54 A.L.J.R 243
House v. King (1936) 55 CLR 499
Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 614
Ladd v. Marshall [1954] EWCA Civ 1; [1954] 3 All ER 745
Counsel:
I. Molloy with B. Frizzell, for the Appellants
J. Sirigoi, for the Respondents

21st May,2020

1. GAVARA-NANU J: This is an appeal against the decision of the primary court in a judicial review proceeding to grant leave to the first respondents on 20 June, 2017, pursuant to O16 r3 (1) and (2) of the National Court Rules (NCR), to seek judicial review of the decision of the Secretary for Lands and Physical Planning (Secretary for Lands) to issue a 99 year Special Agricultural and Business Lease (SABL) to the appellants in his capacity as a delegate of the Minister for Lands, over a portion of land known as “Rora Kelekal” which is described as Portion 196C, part Milinch of Nakanai (SE) and part Woipuna (NE) Fourmil of Talasea, East New Britain Province. The first respondents claim the SABL overlaps onto part of their customary land known as “Marana”. The first respondents claim the SABL is null and void because it was issued in breach of s10, s11 s102 of the Land Act, 1966. They claim they were not aware of their customary land being included in the SABL.

2. The background facts to the appeal have been succinctly stated by Logan J, in his judgment and it is not necessary for me to repeat them.

3. The appeal is brought pursuant to Order 10 of the Supreme Court Rules, 2012, and leave granted on 3 April, 2019. The grounds of appeal may be summarized as follows:

1. The first respondents purportedly brought a representative action but failed to meet the requirements for such action, namely to provide written authorizations by persons, clans or clan members so represented in the action. See, Malewo v. Faulkner [2009] PGSC3; SC960 and Kimas v. Boera Development Corporation Ltd [2012] PGSC8; SC1172.

2. The learned primary judge failed to have any or sufficient regard to the delay by the first respondents in applying for leave to apply for judicial review.

3. Alternatively, the learned primary judge failed to have any or sufficient regard to the delay by the first respondents in applying for leave to apply for judicial review since 2014.

4. In all the circumstances, the learned primary judge failed to address or to address sufficiently and consequently failed to find the first respondents guilty of undue delay in bringing their application for leave to apply for judicial review.

5. That the learned primary judge failed to have regard or sufficient regard to O16 r4 (1) of the NCR, that a grant of substantive relief would likely cause substantial hardship or substantial prejudice to the rights of others or be detrimental to good administration.

6. The first respondents failed to disclose or adequately disclose that other proceedings which were substantially same as this had been dismissed even for delay.

7. The learned primary judge failed to have any or sufficient regard that the first respondents in their application for leave for judicial review were seeking to challenge the indefeasible title held by the appellant and the first respondents had not shown even prima facie evidence which may vitiate the title.

4. I consider it convenient at this juncture to make some remarks regarding the procedure for a leave application. An application for leave to apply for judicial review is made pursuant to O16 r3 (2) of the NCR, the application is made ex-parte of all named defendants except the State. See, s8 of the Claims By And Against the State Act, 1996, and Innovest Ltd v. Hon Patrick Pruaitch & The State (2014) N5949. The materials required for leave are prescribed in O16 r3 (2) and (3). Any of the other named defendants wishing to be heard on an application for leave can only do so with leave. Generally speaking, leave should not be granted unless it is in the public interest to do so. Otherwise, defendants other than the State have no statutory right to be heard on leave. It is significant to also note that even the right of the State to be heard on leave is not absolute. See, Innovest Ltd v. Hon Patrick Pruaitch & The State (supra). The reason is, the Rules under Order 16 of the NCR, which govern and regulate judicial review proceedings require the proceedings to be dealt with expeditiously, thus hearing defendants other than the State on leave would defeat the purpose and objective of the Rules.

5. Leave is a discretionary remedy, thus it is entirely up to the discretion of a primary judge whether to grant leave or not. However, the primary judge must be guided by established principles for proper exercise of judicial discretion. There are four broad basic principles which should guide a primary judge in the exercise of his discretion. These principles constitute the basic requirements or criteria for leave which an applicant must satisfy. First, whether the applicant has standing or sufficient interest to seek review of the decision. Second, whether there was delay in the applicant bringing the action, and if there was delay, whether it had been reasonably explained. Issue of delay and whether there has been a reasonable explanation for the delay, if any, have to be considered subjectively from the overall facts and circumstances. See, Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (2011) SC1120. Third, whether the applicant had exhausted all the administrative remedies before seeking leave. Fourth, whether there was or were serious issue(s) to be tried or an arguable case. The first respondents as applicants had to satisfy or meet all these requirements. See, Kekedo v. Burns Philip (PNG) Ltd [1988 -89] PNGLR122; Aloys Kingsly Golu v. NEC (2011) N4425 and Innovest Ltd v. Hon Patrick Pruaitch & The State (supra).

6. It is appropriate that I make some specific remarks regarding the requirement of a serious issue or an arguable case. If a primary court is able to form a prima facie view that there is a serious issue(s) to be tried or an arguable case, which upon further evidence at the judiciary review itself may favour granting of the relief sought, then leave should be granted. The primary court is required to do this upon a quick perusal of the materials then before it. This test was stated succinctly by the House of Lords per Lord Diplock in an oft. cited case of Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 at 644. His Lordship said:

"If, on a quick perusal of the material then available, the court 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 that 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”.

7. In Innovest Ltd, in reiterating this principle, I said:

“,,, the Court is only required to see whether on a quick perusal of the materials before it, there is a prima-facie case of an arguable case, or a serious issue to be tried which, on further investigation by the Court, might favour the grant of the claim or relief sought by the plaintiff. If so then that would warrant the grant of leave for judicial review. A quick perusal of the materials should not involve a detailed analysis of the materials. The materials to be perused should include the Statement in Support, more particularly the grounds for review and the supporting affidavits”.

8. This principle is now well established in this jurisdiction, it is a fundamental guiding principle for the courts in deciding whether there is a serious issue to be tried or an arguable case. By virtue of Sch. 2.2 of the Constitution, the principle is part of the underlying law.

9. In this instance, the Court must be guided by established principles in deciding whether it should disturb the primary judge’s exercise of discretion. If the Court in exercising its supervisory power decides to disturb the primary judge’s exercise of discretion, it must do so with great caution and only if the primary judge was clearly and manifestly wrong. The principles to guide the Court were succinctly stated in Alina Sarah Bean v. Ian Maxwell Bean [1980] PNGLR 307; SC187. The Court per Andrew J, when adopting what was said in Gronow v. Gronow [1979] HCA 63; (1979) 54 A.L.J.R 243 to elaborate the principles said:

“In the absence of an error of law or mistake of fact, the exercise by the trial judge of discretion in the award of custody ought not to be disturbed by reason of the particular weight attached by the trial judge to considerations arising out of the evidence in the trial and referable, inter alia, to the character and demeanour of the parties or witnesses. The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight. It follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. See per Stephen J. in Gronow v. Gronow (1979) 54 A.L.J.R. 243.13”.

10. Then the Court per Kapi J (as he then was) in adopting a passage from the decision of the High Court of Australia in House v. King [1936}55 C.L.R 499, further said:

“On matters of judicial discretion the High Court of Australia in House v. The King 55 C.L.R. 499 at pp. 504-5 said:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

These principles have been recently approved in the case of Gronow v. Gronow (1979) 54 A.L.J.R. 243.21. The recent decision of the High Court of Australia is also referred to in the judgment of Mr. Justice Miles in Brian John Lewis v. The Independent State of Papua New Guinea Unreported judgment No. SC178, 29th August, 1980.22. All these principles have been adopted in numerous cases in this jurisdiction after Independence and they can be properly regarded as part of the underlying law of Papua New Guinea”.

11. The same principles were reiterated in a more recent case of Isaac Lupari v. Sir Michael Somare, MP (2010) SC1130. The Court said:

“It is clear from the authorities that the grant of a mandatory injunction or reinstatement is discretionary following the grant of certiorari. The question is whether the trial judge exercised his discretion properly in refusing reinstatement. This Court has set out the principles upon which the exercise of discretion may be disturbed. An appellate court may overturn a discretionary judgment if there was some error. An error exists when, for instance, the primary judge acts upon a wrong principle, or allows extraneous or irrelevant matters to guide or affect him, or fails to take into account some material consideration: Bean v. Bean [1980] PNGLR 30. The fact that an appellate court would have arrived at a different conclusion, is no basis for a reversal of the decision. There must be an error of law or mistake of fact...

We adopt these principles as being relevant and appropriate to this Court's review of a judge's exercise of discretion under our Order 22 rule 62.”

12. The Court went on to cite with approval a passage from the decision in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788, where the Court said:

“The appellant Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is ‘unreasonable or plainly unjust’ and such that an error can be inferred. These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v. The Commonwealth [1953] HCA 25; (1956) 94 C.L.R. 621 at p.627, which was adopted by Clarkson J. in Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106 at p.112 – 113:

“The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees’ Union v. The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgments is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance...”

13. These are time-honoured principles which have been followed in many earlier cases, they are now embodied as part of our underlying law. In Pabe Uwi v. Ehau [1965-66] PNGLR 404, for example, Ollerenshaw J, adopted the principles enunciated in House v. King (supra). In Pabe Uwi, the court was discussing exercise of sentencing discretion in a criminal case by a trial judge but the principles have universal application in all cases where exercise of judicial discretion by a primary court is challenged on appeal.

14. It is important to note that immediately following a grant of leave, it is a mandatory requirement under O16 r5 (1) and r13 (5) (1), of the NCR, that the primary judge issue a direction that the applicant file and serve a notice of motion and supporting affidavits to seek judicial review. The judge is also required to direct under O16 r5 (2) that all persons directly affected by the decision be served with all the documents. It is also important to note that filing of a notice of motion is a condition precedent to a valid and competent application for a substantive judicial review. See, Timbani Logai v. Steven Maken & The State (2008) N4021 and Mathew Vingome v. John Diala (2014) N5710. The next direction the primary judge is required to issue is to fix a date for a Directions hearing within 14 days there from. See, O16 r13 (5) (5) of the NCR. This is a mandatory requirement. At that Directions hearing, the court may issue further directions, including directions for “filing and service of affidavits by the respondents”. See, O16 r13 (6) (4) (d) of the NCR. The significance of this process is the parties, especially the defendants still have the right to file affidavits for the judicial review itself even well after the grant of leave. This may occur at the second stage of a proceeding before the substantive or the actual judicial review.

15. A significant effect of this procedure is, if at the substantive judicial review the materials provided by the parties, including affidavits filed by the defendants, alter the initial prima facie view favouring the grant of leave, the substantive relief may be refused. In Inland Revenue Commissioners, Lord Diplock in elaborating this process said:

"The procedure under the new Order 53 involves two stages: (1) the application for leave to apply for judicial review, and (2) if leave is granted, the hearing of the application itself. The former, or "threshold" stage is regulated by rule 3. The application for leave to apply for judicial review is made initially ex parte, but may be adjourned for the persons or bodies against whom relief is sought to be represented...Rule 3 (5) specifically requires the court to consider at this stage whether "it considers that the applicant has a sufficient interest in the matter to which the application relates". So this is a "threshold" question in the sense that the court must direct its mind to it and form a prima facie view about it upon the material that is available at the first stage. The prima facie view so formed, if favourable to the applicant, may alter on further consideration in the light of further evidence that may be before the court at the second stage, the hearing of the application for judicial review itself". (My underlining).

16. Having regard to the principles discussed above, the Court can only disturb the primary court’s exercise of discretion in granting leave to the first respondents, if the exercise of discretion was improper and not made judicially. According to the established principles, the primary court's exercise of discretion would have been improper and wrong if it made mistakes as to facts, or acted on wrong principles, or took into account matters which it should not have taken into account or took into account matters which it should not have taken into account or over emphasized on matters before it.

17. Consequently, the threshold question is – Did the primary judge err in the exercising his judicial discretion in favour of the first respondents in granting them leave to seek judicial review of the decision of the Secretary for Lands to issue the SABL to the appellants? To answer this question, I turn now to address each of the grounds of appeal. The determination of each ground of appeal should indicate whether the primary judge exercised his discretion properly or not.

Ground 1.

There is no dispute that the first respondents, two of whom were principal plaintiffs are also principal owners of the land in dispute, thus it is in my view clear that they had sufficient interest to bring the action. The primary judge therefore had proper basis to exercise his discretion in their favour to grant leave. As to the persons represented in the action not giving their written authorization, that is a discretionary issue which the trial judge should be allowed to decide.

Ground 2.

The issue of delay was considered by the primary judge. His Honour was of the view that the relevant period of delay was from 2014. His Honour gave reasons for his decision, and it was his view that there were reasonable explanations for any delay. See, Tau Gumu v. Papua New Guinea Banking Corporation Limited (2002) N2251 and Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (supra). This is a live issue which can still be raised at the trial.

Ground 3.

I consider this to be a matter which can still be raised a the trial when all the evidence is before the Court.

Ground 4.

This ground raises issue of delay as in grounds 2 and 3, which I have dismissed. My comments are same as those given for grounds 2 and 3.

Ground 5.

As I alluded to earlier in my judgment, the appellants still had the right to file affidavits even after the grant of leave and could still seek any interlocutory relief, including summary determination. This right is conferred both by the Rules and common law, since the appellants could not be heard on leave. Notably, the appellants sought leave before this Court to adduce fresh evidence, but that application appears to have been based on a view that they had no right to file affidavits after the grant of leave, which is not the case. In certain situations, I also in the exercise of court's wide discretion, allow parties to adduce fresh evidence even on the day of trial, with leave. The applicant must of course, apart from satisfying the requirements to adduce fresh evidence, show that the evidence is relevant to the issues before the Court.

Ground 6.

If the appellants are of the view that the proceeding is a duplication of a previous proceeding which may have already been determined, that is a matter which the appellants should raise at the substantive judicial review when all the evidence is before the Court. In any case, it is significant to note that the first respondents were not parties to the previous proceedings. The disputed portion of land in the previous proceedings was also different. Therefore, it would appear that the first respondents had the right to bring their action.

Ground 7.

Whether the appellants are holding an indefeasible title and whether the title is or may be vitiated under any of the exceptions listed under s. 33 of the Land Registration Act, Chapter 149, is an issue which can only be properly determined at the substantive hearing. One has to bear in mind that a title which may not suffer from actual fraud may still suffer from irregularity where for example title was issued in breach of mandatory statutory requirements. See, The National Council of Young Mens' Christian Association of Papua New Guinea Inc. v. Firms Services Ltd & Ors (2017) SC1596 and Emas Estate v. Mea [1993] PNGLR 219. In this regard, I respectfully agree with Kariko J, that the first respondents having disputed the land boundaries covered by the SABL, there was a serious issue for trial under s. 33 (1) (e) of the Land Registration Act. But even if the issue of boundaries had not been specifically raised by the first respondents, the nature of their claims against the SABL raised serious issue of regularity on how SABL was issued. In my opinion, there were materials then available for the primary court to form a prima facie view of a serious issue or an arguable case, thus establishing the principle in Inland Revenue Commission v. National Federation of Self-Employed and Small Businesses Ltd (supra). See also Leo Maniwa & Ors v. Aron Malijiwi & Ors (2013) N5687. This was not a claim of actual fraud against the appellants under s. 33 (1) (a) of the Land Registration Act. The relief sought is in my view based on irregularity viz; breach of the provisions of the Land Act, in issuing of the SABL, and the issue can only be properly determined in the actual judicial review. See Papua Club v. Inc. Nusan Holdings Ltd (No.2) (2004) N2603.

18. For the foregoing reasons, I find that the learned primary judge did not err in exercising his discretion in favour of granting leave to the first respondents to seek review of the decision of the Secretary for Lands to issue a SABL to the appellants over the subject land. It follows that all the grounds of appeal should be dismissed.

19. Consequently, I make following orders:

i. Appeal be dismissed.

ii. The matter of OS (JR) No. 861 of 2016 be remitted to the National Court and listed for directions and be dealt with accordingly.

iii. The appellant to pay the first respondents’ costs of and incidental to this appeal, including costs for the application for leave to appeal,
which are to be taxed, if not agreed.

20. KARIKO, J: This is an appeal against the order of the National Court of 20th June 2017 granting leave to the First Respondents to apply for judicial review of the decision of the Secretary for Lands and Physical Planning, as the delegate of the responsible Minister, to issue a Special Agricultural and Business Lease (SABL) in favour of the Appellant in respect of land described as Portion 196C, part Milinch of Nakanai (SE) and part Woipuna (NE) Fourmil of Talasea, West New Britain Province (Portion 196C).

Background

21. The relevant background facts of the National Court proceeding giving rise to the appeal are fully covered in the judgment of his Honour Logan J. I agree with his Honour’s summation of the facts and do not consider it necessary to repeat them.

Appeal against exercise of discretion

22. The power of the National Court to grant or refuse leave for judicial review is a discretionary one to be exercised judicially; NTN v Board of the Post and Telecommunication Corp [1987] PNGLR 70.

23. On appeal against the exercise of a discretionary power, an appellate court will only disturb the lower court’s decision only if that court made the following errors:

(a) it acted upon a wrong principle, or

(b) it considered extraneous or irrelevant matters, or

(c) it did not take into account relevant considerations; or

(d) it misapprehended the facts.

Bean v Bean [1980] PNGLR 307; Telikom PNG Limited v ICCC (2008) SC 906.

Grounds of appeal

24. The alleged errors constituting the grounds of appeal are succinctly summarized by his Honour Logan J, which summary I adopt and restate by way of endorsement and for convenience:

“(a) The court failed to consider that the proceedings were purportedly a representative action, but none of the requirements of a representative action had been complied with.

(b) The decision under review was made in 2008, yet the First Respondents (and the court) only accounted for part of the delay, and years of delay remained unexplained.

(c) The challenge is to registered title, but the application for judicial review does not raise even a prima facie case impugning the otherwise indefeasible title.

(d) The First Respondents failed to reveal to the court there had been a previous claim commenced in 2011 (which was dismissed, even then, for delay).

(e) The First Respondents failed to reveal to the court facts and circumstances, within their knowledge, showing that granting the substantive relief would likely cause substantial hardship, or substantially prejudice the rights of other persons. This ground is dependent on the court receiving fresh evidence. The Appellants seek leave to introduce evidence on that subject.”

Consideration

25. I agree with his Honour Logan J that the approach suggested in Phillip v Tiliyago (2019) SC1783 would be appropriate to address the concern raised by ground (a),

26. In relation to grounds (b), and (d), I agree with his Honour’s reasoning and conclusions, and I have nothing to add.

27. With respect however, I differ from his Honour’s opinion regarding the other grounds for the following reasons.

Fresh evidence

28. The law relating to fresh evidence on appeal is well settled and the relevant considerations were stated in the following terms in William Chilen v The State (2011) SC1099 per Injia CJ, Hartshorn J and Sawong J at [3]:

“3. By fresh evidence, as referred to in s. 6 (1) (a) Supreme Court Act, what is meant is relevant and material evidence which the party applying could have led at the trial or hearing, which has come to light since the hearing or trial, or evidence which has come to the knowledge of the party applying since that hearing or trial which could not by reasonable means have come to his knowledge before that time: John Peng v. The State [1982] PNGLR 331, Abiari v. The State [1990] PNGLR 250, James Pari v. The State [1993] PNGLR 173, Rawson Construction Ltd v. Department of Works (2005) SC777 and Ben Kairu v. The State (2005) SC782.” (My emphasis)

29. Given that statement of law, I am of the view that ground (e) of the appeal must fail.

30. The evidence sought to be adduced as “fresh evidence” cannot be regarded as such for the reason that the Appellant was not a party to the hearing in the National Court. It cannot be said that the evidence sought to be adduced could have been led by the Appellant in the National Court because the nature of the hearing then did not require appearance by the Appellant. An application for leave for judicial review is made ex parte; Order 16 rule 3(2) National Court Rules. However, upon notice given to the Secretary for Justice pursuant to Order 16 rule 3(3), appearance may be made on behalf of the State. That occurred in the present case and the application for leave was not opposed.

31. The nature of an application for leave was explained by Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, a leading authority on judicial review which has been approved and followed by this Court, at 642:

“ .. the court is only required to form a prima facie view about the case based upon the material that is available at the first stage. The prima facie view so formed, if favourable to the applicant, may alter on further consideration in the light of further evidence that may be before the court at the second stage, the hearing of the application for judicial review itself.”

32. It is my opinion that other parties to a judicial review, such as the Appellant, are not prejudiced by not being heard at the leave stage. At the hearing of the judicial review, they are entitled to argue jurisdictional issues such as standing, and so the question of whether the proceeding was properly commenced as a representative action could be raised then. They are also at liberty to seek dismissal of the relief claimed for being clearly untenable. The Appellant submits that the fresh evidence concerning substantial hardship and prejudice the Appellants would have been relevant to the question of leave. However, Order 16 rule 4 National Court Rules permits this plea to be raised at the judicial review stage also. It is my further view that if the applicant for leave is shown at that latter stage to have not properly disclosed relevant material or has misled the court in seeking leave, the court may at the hearing stage, consider setting aside the leave granted; Sekesu Sisapi Land Group Inc v Turama Forest Industries Ltd (2010) SC1072. An appropriate order for costs could also be considered against the offender.

33. For the foregoing reasons, I would refuse the application to adduce fresh evidence.

Relief sought

34. It is obvious that in the application for judicial review, the First Respondents seek nullification of the SABL. What is not entirely clear from the Statement of Facts filed with the leave application is the specific basis under s.33(1) Land Registration Act Ch.191 that is relied upon to challenge the title deed. A registered proprietor of land has indefeasible title unless a case under s.33(1) is established; Mudge and Mudge v Secretary for Lands [1985] PNGLR 387.

35. s.33(1) reads:

“33. Protection of registered proprietor.

(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except—

(a) in the case of fraud; and

(b) the encumbrances notified by entry or memorial on the relevant folio of the Register; and

(c) the estate or interest of a proprietor claiming the same land under a prior instrument of title; and

(d) in case of the omission or misdescription of any right-of-way or other easement created in or existing on the same land; and

(e) in case of the wrong description of the land or of its boundaries; and

(f) as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and

(g) as provided in Section 28; and

(h) a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and

(i) any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a department or officer of the State or of a public corporate body.” (My underlining)

36. In the Statement of Facts, the First Respondents plead that the State did not comply with the Land Act 1996 by failing to obtain the consent of the landowner clans of customary land known as “Marana” before including it as part of the land contained in the SABL for Portion 196C. They allege that while Portion 196C purports to cover customary land described as “Rora Kelakal”, it partly contains “Marana” which is distinct from “Rora Kelakal” and owned by separate clans.

37. If the claim is based on fraud, then I agree that it is doomed to fail because it is not alleged nor is there evidence that the Appellant, the duly registered proprietor, was complicit in such conduct. Fraud under s.33(1) means actual fraud committed by the proprietor; see Papua Club Inc v Nusaum Holdings Ltd (No.2) (2004) N2603; John Soto v Our Real Estate Ltd (2018) SC1701.

38. However, I do not think the First Respondents necessarily argue fraud. I find the pleadings and the evidence also suggest the exception under s.33(1)(e), that is, the conversion of the customary land “Rora Kelakal” to a SABL wrongfully included other customary land owned by others. That appears to be the thrust of the claim by the First Respondents. To my mind, that claim is arguable on the pleadings and the evidence. If a claim based on s.33(1)(e) is successful, a possible relief may be for title deed (the boundaries) to be rectified pursuant to ss. 160 and 161 Land Registration Act. The pleadings (including the relief sought) would obviously need amending and that may be allowed under Order 16 rule 6(2) National Court Rules. The First Respondents could pursue that course if the case is remitted to the National Court.

Conclusion

39. In the end, I find no error by the primary Judge in granting leave for judicial review to the First Respondents. I would order that:

(1) This appeal is dismissed.

(2) The proceeding OS(JR) No. 861 of 2016 shall be re-listed in the National Court for directions and the parties advised accordingly.

(3) The Appellant shall pay the First Respondents’ costs of and incidental to the appeal, and the application for leave to appeal, to be taxed if not agreed.

40. LOGAN J: On 11 July 2008, the then Minister for Lands of whom the Second Respondent is successor, granted to Pomata Investment Limited (the First Appellant) a Special Agriculture and Business Lease (SABL), for a period of 99 years over land known as "Rora Kelakal" described as Portion 196C, part Milinch of Nakanai (SE) and part Woipuna (NE) Fourmile of Talasea in East New Britain Province with an area of 15,000 hectares as registered on Survey Plan Catalogue No. 15/879 (Portion 196C). Gilford Limited, the Second Appellant, is the sub-lessee from the First Appellant of Portion 196C.

41. At least purportedly, the First Respondents, Messrs Bosco Utpagarea and Robert Janes represent the landowner clans of the Marana Land Area in the West Pomo District, East New Britain Province. The Marana Land Area overlaps with Portion 196C.

42. By an amended originating summons dated 9 March 2017, the First Respondents applied to the National Court for leave to institute a judicial review proceeding. In that proposed proceeding, they sought a declaration that the decision of the Second Respondent to grant the SABL to the First Appellant was in breach of ss 10, 11 and 102 of the Land Act 1996 and, accordingly, was null and void. They also sought a declaration and the inclusion of the Marana Land Area was in breach of ss 10, 11 and 102 of the Land Act 1996 and, accordingly, was null and void. They further sought an order that the Second and Third Respondents correct the Survey Plan Catalogue No 15 / 879 to exclude Marana Land Area from Portion 196C.

43. On 20 June 2017, the First Respondents obtained the requisite grant of leave from the National Court. The Appellants now appeal to this Court, by leave, against the order granting leave to institute the judicial review proceeding.

44. In summary, the Appellants allege that the granting of leave to apply for judicial review miscarried for one or more of the following reasons:

(a) The court failed to consider that the proceedings were purportedly a representative action, but none of the requirements of a representative action had been complied with.

(b) The decision under review was made in 2008, yet the First Respondents (and the court) only accounted for part of the delay, and years of delay remained unexplained.

(c) The challenge is to registered title, but the application for judicial review does not raise even a prima facie case impugning the otherwise indefeasible title.

(d) The First Respondents failed to reveal to the court there had been a previous claim commenced in 2011 (which was dismissed, even then, for delay).

(e) The First Respondents failed to reveal to the court facts and circumstances, within their knowledge, showing that granting the substantive relief would likely cause substantial hardship, or substantially prejudice the rights of other persons. This ground is dependent on the court receiving fresh evidence. The Appellants seek leave to introduce evidence on that subject.

45. As is envisaged by the applicable practice (Order 16, rules 3(2) and 3(3), National Court Rules), the First Respondents applied for leave just on notice to Secretary for Justice (and thus to the various State parties – the Second, Third and Fourth Respondents) but not to the First Respondents. The very purpose of that practice is to ensure that non-State parties potentially affected by relief sought on a judicial review application not be put to the time, trouble and expense of having to respond unless and until an applicant has proved the giving of the required notice and at least been able to persuade a judge, after hearing from the State, if it chooses to appear, that the applicant has standing, has exhausted such other remedies, if any, as are available in relation to the decision in question, has a prima facie case for review and, where applicable, has explained any delay to the satisfaction of the judge: Wek v Sobol Trading (2016) SC1535, [26]; GR Logging v Dotaona [2018] PGSC 34; SC1690, [58].. In short, the procedural requirement to seek leave acts as a filter.

46. As it happened, the State parties did not oppose the granting of leave to institute the judicial review proceeding.

47. The Appellants recognized, correctly, that the granting of leave entailed the exercise of a judicial discretion by the learned primary judge. It was thus necessary for them to demonstrate that his Honour’s discretion miscarried in a way notably described by the High Court of Australia in House v The King (1936) 55 CLR 499, at 504-505, a description adopted for this jurisdiction in, for example, Bean v Bean [1980] PNGLR 307. Thus, it was for the Appellants to demonstrate some error of principle, the taking into account of an irrelevant consideration, a failure to take into account a relevant consideration or some misapprehension as to the facts.

48. It is necessary to remember that the subject for present appellate consideration is whether the granting of leave miscarried, not whether the Appellants must necessarily succeed on the merits at trial, if the matter proceeds to a trial of the judicial review application. Of course there can be overlap between these two subjects. For example, an always unanswerable error of law either misconceived or not adverted to by the court when granting leave might, when determined at trial, demonstrate why leave ought not to have been granted. But it is perfectly possible that a claim may, for example, have sufficient prospects to warrant a grant of leave even though, after trial, an applicant is ultimately unsuccessful. Further, as will be seen, the subject of delay can arise as a relevant consideration at two stages.

49. There were, with respect, times during the course of the Appellants’ submissions when I wondered whether this distinction between a leave application and a trial on the merits as a sequel to a grant of leave was being observed although, as mentioned, there is some scope for overlap.

50. There was, as the Appellants correctly highlighted, an earlier proceeding in this court, Gifford Limited v Pavol (SCA 40 of 2011, unreported, ex tempore judgement, 1 May 2012) (Gifford Limited v Pavol) in which an endeavor by the respondent to that appeal to challenge by judicial review, amongst other things, the granting of the SABL in respect of Portion 196C the case also concerned another portion of land in the same general area). In that case, the appellant succeeded in a challenge to the granting of leave, primarily on the basis that, in granting leave, the National Court had not adverted at all in that court’s reasons for judgement to the relevant consideration of delay in the seeking of relief. Another flaw exposed on appeal was a procedural deficiency in the constitution of the applicant as a representative in representative action.

51. The First Respondents were not named as the persons conducting that earlier proceeding on behalf of a named group of persons having the same or a collective interest. Had, as perhaps they might have been, named as members of the group, given the requisite consent and the proceeding correctly constituted as a representative action, the result in Gifford Limited v Pavol might very well have bound them, such that the present application for leave to institute a judicial review proceeding in respect of, materially, the same decision in respect of the same land would have been an abuse of process. Ironic though it may be, one consequence of the procedural flaw exposed in Gifford Limited v Pavol is that there can be no such characterization of the First Respondent’s application for leave. The Appellants, correctly in my view, conceded this in the course of submissions.

52. The absence of correspondence between the applicant for leave in Gifford Limited v Pavol, Mr Jacob Samo and the First Respondents also means, in my view, that the absence of mention of that case by the First Respondents to the primary judge on the leave application is not shown to be the result of a want of necessary candour on their part in relation to the background circumstances to the decision which they sought the court to review.

53. Unlike in Gifford Limited v Pavol, this is not a case where the learned primary judge failed to advert to the subject of delay. Clearly here, delay was a most relevant consideration, in the context of whether to grant leave, given that the SABL was granted in 2008. The explanation given by the respondents, which was accepted by the primary judge may be summarised as follows. The land the subject of the SABL covered an area of land held in customary ownership known as mentioned above, as “Rora Kelakal”. The First Respondents, by their affidavit evidence disclosed an awareness back as far as between 2010 and 2011 of the landing of heavy machinery on Drina Plantation, which is located on that land. They also disclosed the subsequent commencement of tree clearing, building of roads and the planting of oil palm trees at the back of the Drina Plantation land. This, they said, was of no concern to them, because their and other clans from Marana do not have customary ownership of the land where these operations were occurring. The First Respondents’ evidence was that their interest was sparked when, around 2014, the operations moved onto that part of portion 196C which was regarded as Marana Clan land. Thereafter, they said roadblocks had been set up and, ultimately, in 2016 trespass proceedings (WS 673 of 2016), filed on 24 June 2016 had been instituted by (or at least purportedly by) the customary owners in the National Court against the Appellants. In the defence filed by the Appellants to the statement of claim in that proceeding the Appellants alleged that the land said to be the Marana Clan land fell within portion 196C. This, the First Respondents alleged, and the primary judge accepted, was the first they knew that the SABL covered the Marana Clan land.

54. The Appellants sought leave to adduce fresh evidence on the appeal, going to the inter-related subjects of hardship and delay. It is necessary to give some further context to the question of whether and to what end such evidence should be received?

55. As already mentioned and as highlighted in Sekem Sisapi Land Group Inc v Turama Forest Industries Ud (2010) SC1072 and exemplified in the application of that case in Gifford Limited v Pavol, the subject of delay is, necessarily, a relevant consideration when deciding whether or not to grant leave to institute a judicial review application. However, the consideration of that subject by the court at that stage in no way precludes a party, especially a non-State party not heard at the granting of leave stage, from raising the subjects of delay and hardship as reasons why, in the exercise the court’s discretion, no remedy should be granted to an applicant. The applicable practice envisages that this basis for resisting the granting of relief might be raised at trial by a respondent: see Order 16, rule 4(1)(b), National Court Rules.

56. It is settled that three conditions must be satisfied before evidence can be characterized as “fresh evidence”:

(a) it could not with reasonable diligence have been obtained at trial.

(b) if given, the evidence would probably have had an important, although not necessarily decisive, influence on the outcome of the case; and

(c) it must be apparently credible, although it need not be incontrovertible.

- Ladd v Marshall [1954] EWCA Civ 1; [1954] 3 All ER 745, at 748, per Lord Denning; adopted and applied in Government of Papua New Guinea and Davis v Barker [1977] PNGLR 386, at 393 and Aircare v Coordinated Air Services [1988-1989] PNGLR 549, at 553 per Bredmeyer J, Amet and Hinchliffe JJ agreeing.

57. The evidence concerned went to the undertaking over the past decade of extensive improvements to and cultivation of portion 196C ever since the granting of the SABL. Included in the evidence were a series of photographs which depicted, amongst the improvements, massive storage tanks and a large processing plant. Quite apart from their obvious embodiment of large capital expenditure, inferentially, neither of these improvements was constructed overnight. Inferentially also, that construction must have been obvious to anyone living near the land who considered themselves to hold, in conjunction with others, customary ownership.

58. The Appellants submitted that, necessarily, this evidence met the conditions for the admission of fresh evidence. After all, they put it rhetorically, they were not heard on the hearing of the leave application, so how could it ever have been introduced with due diligence? Further, such evidence was said to be relevant in relation to delay and at least influential on the subject.

59. However, in accordance with the practice mentioned, it would be unusual that a respondent other than the State (or one of its emanations or officers) would ever be heard at the preliminary, filtering stage of the seeking of a grant of leave. So there is, with respect, something of a “pulling oneself up by one’s own bootstraps” quality about the submission that the evidence could not with reasonable diligence have been led on the leave application. It is a given that such evidence could not have been led by the Appellants then. The true basis for the reception on the appeal of the affidavit evidence tendered by the Appellants is whether it demonstrates that the learned primary judge was misled on a significant question of fact going relevant to delay in the seeking of leave to institute a judicial review application: Sekesu Sisapi Land Group Inc ILG No 2123 v Turama Forest Industries Limited [2010] 2 PNGLR 271. To receive such evidence is not to invite a trial on appeal on quibbles at the margin of what everything that might conceivably be regarded as pertinent to delay. Rather, if an applicant for leave can be shown to have omitted to have omitted a subject of central importance about delay or not to have been completely candid on that subject, then it might be concluded that a judge who had granted leave had been misled.

60. Here, the First Respondents did not omit to mention that there had been extensive and progressive improvements made to Portion 196C since 2008. They offered an explanation as to why these had, initially, not concerned them. The additional evidence tendered by the Appellants, which I regard as admissible for the limited purpose mentioned only goes to underscore in further detail a subject already made well apparent by the First Respondents to the primary judge. It does not demonstrate that the First Respondents misled the primary judge.

61. His Honour expressly adverted to delay and made an evaluative judgement taking that into account in deciding whether to grant leave. It is, having regard to House v The King, nothing to the point as to whether or not, given the same evidence tendered to the primary judge, I would have taken the same view of the impact of the delay and later improvements made. It would only be if the evaluation made by the learned primary judge met the high threshold of not being reasonably open that there would be warrant for interfering with the exercise of the discretion to grant leave. I cannot so conclude. This basis of challenge must therefore fail. That conclusion does not mean that, the Appellants’ evidence would not be admissible at trial. Still less does it mean that, upon a consideration of that evidence, as well as all other evidence admitted at trial, the trial judge might not permissibly conclude that, as a matter of discretion, and on the basis of delay and hardship, the First Respondents should not be granted the relief sought by them (or only some of that).

62. Were this the only basis of challenge, I should therefore dismiss the appeal. But there is another substantive basis of challenge to the exercise of the discretion to grant leave.

63. The SABL was granted under the Land Act. It was registered under the Land Registration Act Chapter 191. The Land Registration Act provides for a system of title by registration, known in recollection of its Australian colonial deviser as “the Torrens System”. The local manifestation of that system is s 33(1) of the Land Registration Act. The effect of s 33(1) was that registration under that Act gave Pomata indefeasible title, subject to certain statutory exceptions: Mudge and Mudge v Secretary for Lands [1985] PNGLR 387, adopting and applying Fraser v Walker [1967] 1 AC 569 and Breskvar v Wall (1971) 126 CLR 376. Of these exceptions, the only one even theoretically possible in the circumstances of the present case, is fraud. The fraud exception has been held to require proof of actual fraud on the part of the registered proprietor: see, for example and recently Paga No 36 Ltd v Elcadona (2018) SC1671; Soto v Our Real Estate Ltd (2018) SCl701.

64. It necessarily follows that an application for leave to institute a judicial review proceeding which, as does the present case, seeks to impeach or question a registered interest in land must fail unless the applicant distinctly pleads and tenders in support evidence sufficient to raise a prima facie case of actual fraud on the part of the registered proprietor. The First Respondents neither pleaded such a case in their grounds of review nor tendered any evidence at all which would support such a case.

65. That the SABL was registered was evident from the material before the court below. Unfortunately, the implications of that were not drawn to the attention of the learned primary judge either by the First Respondents or by the various State parties. The State, by the Registrar of Titles within the executive branch of government, is responsible for the administration according to law of the Land Registration Act. The National Court and registered proprietors and those holding an interest from a registered proprietor are entitled to expect that, when an application for judicial review which seeks to impeach or question a registered title is served on the Secretary for Justice that the State will draw to the court’s attention on the application for leave the ramifications of a system of title by registration, the only exceptions to indefeasibility and whether there exists, prima facie, as pleaded and evidenced by the applicant, a case falling within an exception, were the evidence to be accepted at trial.

66. This is a case where, with respect, the granting of leave was affected by an error of principle. No case falling within an exception to indefeasibility was evidenced prima facie or even alleged at all. Necessarily, leave ought to have been refused. The Appellants ought not to be put to the time, trouble and expense of a trial. The appeal ought to be allowed, the order granting leave should be set aside and, in lieu thereof, the application for leave should be dismissed. The State parties chose not to appear on the hearing of the appeal. The Appellants are entitled to an order for costs in their favour. These should be paid by the First Respondents.

67. It remains necessary to make some observations about the constitution of the First Respondents as applicants in a representative action. The customary land ownership asserted by the First Respondents, which was the source of the standing they asserted to seek judicial review, was apparently held by numerous persons having the same interest. Order 5, rule 13(1) of the National Court Rules was therefore applicable. That rule permitted one or more of such persons to commence or continue a proceeding. But there was a need for all persons in the same interest to be named and for each of them not just to have given a signed authority to the lawyers to act for them but for the First Respondents, as the persons purporting to have commenced the representative action, to have produced a written authorisation by the group to commence the proceeding as the representatives: Tigan Malewo v Keith Faulkner (2009) SC960.

68. All members of the group were not named on the application for leave. Further, though it was asserted by affidavit before us that the requisite authority existed, it was not annexed to the affidavit. I consider that, were this the only deficiency, the learned primary judge might permissibly have allowed the First Respondents a reasonable time within which to rectify the procedural irregularity. So much is acknowledged in Philip v Tiliyago (2019) SC 1783, which contains a helpful discussion of relevant authorities. If the First Respondents had not, without reasonable cause, rectified the procedural deficiency within the time allowed, the National Court might then have dismissed the application for leave on the basis that the First Respondents had not demonstrated that they had standing to bring the application.

69. As it is, it would be pointless to grant any such indulgence to the First Respondents, because their application for leave ought always, for the reasons given above, to have been doomed to fail for want of a prima facie case.

70. Orders:

1. The appeal be allowed.

2. The orders made by the National Court in OS (JR) No 861 of 2016 on 20 June 2017, including that granting leave to the First Respondents to apply for judicial review be set aside.

3. In lieu thereof, it be ordered that the application for leave to apply for judicial review be dismissed.

4. The First Respondents pay the Appellants’ costs of and incidental to the appeal, and the application for leave to appeal, to be taxed if not agreed.

____________________________________________________________________

Warner Shand Lawyers : Lawyers for the Appellants

Sirigoi Lawyers : Lawyer for the Respondents

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