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Luru v Kimas [2007] PGNC 123; OS 546 of 2004 (31 May 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 546 OF 2004

BETWEEN:

JERRY LURU
Plaintiff

AND:

PEPI KIMAS the Secretary Lands & Physical Planning Department

First Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

AND:

PAGA NO. 36 LIMITED

Third Respondent

Waigani: Hartshorn, J.
2007: 22 March, 31 May

JUDICIAL REVIEW - Leave for Judicial Review – Arguable case – Delay

Cases cited:
Pora v. Leadership Tribunal [1997] PNGLR 1.
Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617.
Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22.
Ex parte application of Eric Gurupa N856,
Pipoi v. Seravo, National Minister for Lands N2120: application of Evangelical Lutheran Church [1995] PNGLR 276.
NTN Pty Ltd. v. PTC & Ors [1987] PNGLR 70.

Counsel:

Mr. A. Kwimberi, for the Plaintiff
Mr. A. Charake, for the Second Respondent

31 May, 2007

1. HARTSHORN, J: The Plaintiff (Mr. Luru) by motion filed on 5th May 2007 seeks orders that leave be granted to apply for orders in the nature of mandamus and other orders including a declaration by way of Judicial Review under O. 18 r. 1 National Court Rules. The substantive orders and declaration sought are set out in Clauses 2-5 of the amended originating summons dated 16 June 2005 and are:

"(2) A declaration that the Lease Grant for Land described as Portion 2127 Milinch, Granville, Fourmil, Moresby, NCD, made to the Plaintiff by the Land Board in its meeting no. 2012, and Gazette No. 192, dated 23rd December, 1999 is valid and is still current.

(3) An Order in the nature of mandamus in that the First Respondent be ordered and directed to process and issue the Letter of Grant (LG) together with the Lease Agreement Form (LAF) to the Plaintiff, in accordance with section 74 and 75 of the Land Act 1996 within 14 days as of the date of service of this order.

(4) An order that the Defendants shall give Plaintiff sufficient opportunity to comply with the terms and conditions of the Lease Grant and other requirements under the Land Act because of the delay in issuing the Letter of Grant and Lease Acceptance Form.

(5) That the Defendants shall pay the Plaintiffs cost of and incidental to this matter since 23rd December, 1999 up to now, if not agreed to be assessed."

2. The application for leave is made pursuant to an order of this Court dated 18th January 2007 requiring the Plaintiff to do so. The Plaintiff had successfully applied for leave to Judicially Review in these proceedings, but then amended its originating summons to seek orders in the nature of mandamus in respect of a different administrative act.

3. The administrative act that is now the subject of Mr. Luru’s proceeding is the purported decision of the Land Board made on 23rd December 1999 that Mr.Luru was a successful applicant for a state lease for land described as Portion 2127 Granville (the Land). Mr. Luru seeks to review the purported failure of the Secretary for Lands and the State to implement that decision by failing to issue to him a Letter of Grant and the Lease Application Form under s.75 Land Act.

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

5. In the Supreme Court case of Pora v. Leadership Tribunal [1997] PNGLR 1, Kapi DCJ (as he then was) stated that the true nature of an application for leave was as set out by Lord Diplock in Inland Revenue Commissioners 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 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 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 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".

This passage was adopted in Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22.

Sufficient Interest
6. The Land Board purportedly made a decision that Mr. Luru was a successful applicant for the Land. This decision was published in National Gazette No: G192 dated 23rd December 1999. This in my view, gives Mr. Luru sufficient interest in the subject matter of the application.

Arguable Case

7. Under O16 r 6(1) National Court Rules Mr. Luru is confined to the grounds pleaded in his statement of support. In the amended grounds there is no mention of the revocation of the forfeiture of the State lease for the Land that was published in National Gazette G26 dated 9th March 2000. The fact of this notice of revocation is indirectly referred to in the submissions of counsel for Mr. Luru..

8. This notice of revocation, referred to by counsel for the State, superceded the administrative act that Mr. Luru now wishes to enforce. Without there being the purported forfeiture, the Land would not have been available for the administrative act that is sought to be enforced, to have occurred. Once that forfeiture was revoked, the forfeiture is to be treated as though it has not occurred; s. 123 Land Act.

9. In my view, Mr. Luru’s application for leave is misconceived. The decision to revoke the forfeiture superceded the administrative act that he wishes to enforce. The decision to revoke the forfeiture was an independent one by the Minister for Lands. As submitted by counsel for the State, it is perhaps, the decision that Mr. Luru should have considered making the subject of the Judicial Review proceedings.

10. As Mr. Luru is seeking to enforce an administrative act that has been superceded by an independent administrative act, he does not have an arguable case.
    
11. If I am incorrect in finding that Mr. Luru does not have an arguable case, I now consider whether there has been delay.
    

Delay

12. The Court may refuse to grant leave if there has been delay and the grant of relief would prejudice the rights of any person or be detrimental to good administration: See O.16 r. 4 Ex parte application of Eric Gurupa N856, Doherty, J.; Pipoi v. Seravo, National Minister for Lands N2120: application of Evangelical Lutheran Church [1995] PNGLR 276.

13. Here, the administrative act under consideration was made in December 1999. These Court proceedings were not filed until September 2004, almost 5 years later. The amendment to the originating summons and statement filed in support which brought this particular administrative act under consideration occurred in June 2005, over 5½ years later. This application for leave was made just over 7 years after the subject administrative act.

14. What are the reasons for the delay? It is apparent that Mr. Luru commenced 5 sets of court proceedings claiming an interest in the Land. This proceeding is the 5th set. The other 4 sets of proceedings were either dismissed, discontinued or not proceeded with. Mr. Luru, in essence, says to this Court that because of his actions in writing "several letters and there was no response forthcoming" between 1999 and 2001 and subsequently commencing various sets of proceedings, the present proceeding being the latest, the matter should be considered ongoing and consequently that is a sufficient explanation for the delay.

15. Mr. Luru was initially granted leave to apply for Judicial Review on 14th October 2004 in respect of the purported failure to process an appeal lodged against the decision of 27th February 2002. It is not apparent from the court file whether the question of undue delay was argued. Here, the administrative act the subject of the leave application predates the other by over two years. In an affidavit of Mr. Luru dated 24 September 2004 he deposes amongst others, that in proceedings OS 705 of 2001 he sought an order in the nature of mandamus against the Lands Secretary similar to, but not the same as the relief sought now. This indicates that the relief sought now could have been applied for then or even earlier. There is evidence that those proceedings were dismissed and leave given to commence new proceedings. New proceedings were commenced but then abandoned as an appeal was pursued. This proceeding was then commenced seeking relief concerning another administrative act. Mr. Luru then decided to change the particular administrative act in respect of which he was seeking relief and was ordered that to do so he required the leave of this Court. It is for the Plaintiff to decide which cause of action he wishes to pursue in a proceeding, the particular administrative act he wishes to review and the relief that he seeks. Throughout Mr. Luru has had the benefit of legal representation. Mr. Luru is saying that he attempted to seek relief unsuccessfully and so he has decided on a different approach. In my view it is not sufficient to explain a delay by saying that other relief was unsuccessfully applied for in other proceedings. I am of the view that there has been undue delay in bringing this application. The particular relief being sought now could have been applied for earlier. I find that there has not been a sufficient explanation as to the delay in commencing the proceeding and also in bringing this application for leave some 7 years after the subject administrative act.

16. Once undue delay has been established, the next question is, would the granting of the relief sought be likely to cause substantial hardship to, or substantially prejudice the rights of, any person, or would it be detrimental to good administration?

17. Since the subject administrative act was made, there have been further administrative acts in respect of the Land. There is evidence that the Third Defendant has spent in excess of One Million Kina on the purported development for the land. To grant the relief sought would in my view be likely to substantially prejudice the rights of the Third Defendant and would be detrimental to good administration. In this regard I cite the words of Wilson J. in NTN Pty Ltd. v. PTC & Ors [1987] PNGLR 70;

"There comes a time when things are entitled to be as they appear. An applicant who is involved in challenging a decision which has implications for another party or for public administration is under a heavy duty to act expeditiously and fairly."

Orders

18. For these reasons, I refuse the application of Mr. Luru for leave to apply for judicial review and award costs to the State.

Kwimberi Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Second Respondent