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Tuanakaus v Amnol [2012] PGNC 285; N5086 (21 December 2012)

N5086

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

O.S. (JR) NO. 506 OF 2012

APPLICATION FOR JUDICIAL REVIEW PURSUANT
SECTION 155(4) THE CONSTITUTION

FOR JUDICIAL REVIEW PURSUANT TO ORDER 16 (3) OF THE NATIONAL COURT RULES

BETWEEN:

FRANCISCA TUANAKAUS AND VERONICA YEMBEK for and on behalf of themselves and the TINETALGO CLAN
Applicants

AND:

BERNARD AMNOL, SIMON PUPET AND ROBERT MAISON for and on behalf of themselves and the members of NISSAL CLAN
First Respondents

AND:

SAMUEL LAVUTUL, ALOIS BOSLE AND THOMAS ZAKOK sitting as the LIHIR LOCAL LAND COURT
Second Respondents

AND:

BRUCE TASIKUL sitting as the NEW IRELAND PROVINCIAL LAND COURT
Third Respondents

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Kokopo: Lenalia, J.
2012: 5th & 21st December

JUDICIAL REVIEW – Application to dismiss the application for leave to apply for judicial review for reasons of undue delay – Order 16 Rule 4 (2) of the National Court Rules

PRACTICE & PROCEDURE – Application for leave to apply for judicial review to review the decision of the Local Land Court and Provincial Land Court on the issue of ownership of customary land – Principles – Issue of whether there has been undue delay in filing the application for leave to apply for judicial review.

APPLICATION TO DISMISS – Application to dismiss the application to apply for leave to apply for judicial review – Application to dismiss the application for leave granted.

Cases cited.

NTN Pty Limited-v-The Board of Post & Telecommunication Corporation and 2 Others [1987] PNGLR 70
Tapas-v-Tekum (5.11.99) N1921
Application of Evangelical Lutheran Church of Papua New Guinea [1995] PNGLR 276

Counsel

Ms. M. Hillary, for Applicants
Mr. B. Sumsuma, for the First Respondents
Mr. F. Edo, for the 2nd 3rd and 4th Respondents

21st December, 2012.

1. LENALIA, J. The Applicants on the Originating Summons applied for judicial review against the decisions of the Second and Third Respondents dated 25th February 2009 and 11th January 2011 respectively. The Local Land Court awarded ownership to the First Respondents and the Applicants for leave to apply for judicial review appealed to the Provincial Land Court. The latter Court affirmed the decision of the Local Land Court which declared the ownership of the customary of the land known and described as "Latum Land" to the First Respondents. The Originating Summons was only filed on 23rd August 2012 in which the Applicants seek the following orders:

1. An Order granting leave for Judicial Review of the Second and Third Respondents decisions dated 11th January 2011 and 25th February 2009 respectively by declaring and awarding customary land ownership of LATUM Land, also known as Block 360, situated at Kunaye Airport of the Lihir Island, New Ireland Province to the First Respondents.
   
2. An Order in the nature of a declaration that the Third Respondents' decision referred to above refusing to uphold the Applicants' grounds of appeal in that the Second Respondents erred in both law and fact to award the customary ownership of the Latum land to the First Respondents misapplied the provisions of Sections 67, 68 and 69 of the Land Dispute Settlement Act and therefore contravened the said provisions thus resulting in miscarriage of justice, as such the decisions of the said Local and Provincial Land Courts were improper, illegal or unlawful in that the orders were made outside of and in breach of the Land Dispute Settlement Act.
   
3. An Order in the nature of Certiorary to bring up to this Court and quash the decisions of the above Local and Provincial Land Courts dated 29th February 2009 and 11th January 2011 respectively.
   
4. An Order that enforcement of the Local and Provincial Land Courts of the above dates be stayed pending determination and outcome of the substantive proceedings herein.
   
5. A further Order restraining the First Respondents from carrying out any activities on the disputed land the Latum Block 360 customary land in Kunaye No.1 Lihir Island, New Ireland Province or receiving and benefiting from any royalty monies paid by Lihir Gold Limited over the disputed land on which the Lihir Airport is built until the substantive proceedings herein is determined in full.
   
6. A further Order that the First Respondents any or all royalty monies paid by Lihir Gold Limited and remit such monies paid so far, and such royalties to be paid hereafter to the National Court Trust Account pending determination of the substantive proceedings herein.
   
7. Costs of the proceedings.
   

2. On 4th October 2012, the First Respondents filed a Notice of Motion through Sumsuma Lawyers Office here in Kokopo seeking six orders. Such Motion was moved before me on 5th of this month. I have reserved until today. I now set out the nature of the First Respondents' Motion:

1. An order that the requirement of service be dispensed with.
   
2. That pursuant to Order 16 Rule 4 (2) of the National Court Rules, the proceedings in OS. No.506 of 2012 (JR) be dismissed for undue delay and failure to make an application for Judicial Review within four (4) months.
   
3. An order that the proceedings in OS. No.506 of 2012 (JR) be dismissed on the grounds that, there is no arguable case or a serious question to be tried.
   
4. That pursuant to Order 12 Rule 40 (1) of the National Court Rules, the proceedings in OS. No.506 2012 (JR) be dismissed for disclosing no reasonable cause of action and being frivolous and vexatious being an abuse of the process of the Court.
   
5. That pursuant to Order 16 Rule 4 (2) of the National Court Rules, the Applicants' Notice of Motion filed on 23rd August be dismissed for noncompliance with the requirement for filling an application for Judicial Review within four (4) months.
   
6. Costs of this application be met by the Applicants.
   
7. Further or other orders that the court deems fit.
   

3. On the application by the First Respondents, the issue for the Court to decide is, was there undue delay in making the application to seek leave for Judicial Review pursuant to Order 16 Rule 4 of the National Court Rules?

4. Before I answer this question, the application by the plaintiffs/respondents for leave to apply for judicial review is first against the decision of the Local Land Court presided over by Mr. Samuel Lavutul and the two Local Land Court Mediators Alois Bosle and Thomas Zakok. Such decision was dated 25th February, 2009. The Provincial Land Court decision presided by Mr. Bruce Tasikul was handed down on 11th January 2011.

5. After the Local Land Court pronounced its decision on 25th February 2009, the Court understands applicants appealed to the Provincial Land Court against that decision. The Provincial Land Court dismissed the appeal and affirmed the decision by the Local Land Court.

6. From the date of pronouncement of the decision by the Provincial Land Court until the application for Judicial Review was filed on 23rd August 2012, it was well-over four (4) months, the time limited by Order 16 Rule 4 (2) of the National Court Rules. I quote the relevant provision in the following terms:

"4. Delay in applying for relief. (UK. 53/4)

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 the making of the application; or

(b) any relief sought on the application,

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 judgment, 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.

(3) Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made."

7. On this application, Mr. Sumsuma of counsel representing the First Respondents argued that the application for leave to apply for judicial review is overdue and it should be dismissed because it is the application for leave to apply for judicial review is four months. Counsel relied on cases which the Court will refer to some of them later.

8. Mr. Edo of counsel representing the Fourth Respondent agreed with the line of argument by counsel for the First Respondents and conceded to the application for leave to apply for judicial review should be dismissed.

9. Ms. Hillary for the applicants appeared as agent for Namani & Associate Lawyers replied that according to instructions, they opposed the application and that the court should refuse the application by the First Respondents.

Application of Law

10. This Court has the discretion either to grant or refuse the application by the First Respondents. For the records, I take it that this application has two parts as it is not clear from the Notice of Motion from my reading of Orders 2, 3 and 4. If this Court dismisses the application for leave to apply for judicial Review, that is the end of the matter. In that case, there is no need for the Court to consider the issue of whether there is an arguable case or the proceedings is frivolous or vexatious or an abuse of the court process.

11. There are two issues on the delay factor. First, Order 1 in the Originating Summons seeks review of two decisions: one by the Provincial Land Court which is the Provincial Land Court decision, it is one year seven months delay since the decision of that court. On the decision by the Local Land Court, it is 4 years 6 months delay.

12. This Court is not dealing with the leave application for judicial review. I am only dealing with an application to dismiss because there has been delay in making or prosecuting the application for leave to apply for judicial review. This Court's jurisdiction comes from Order 16 Rule 4 (2) of the Rules.

13. Where there is delay in making the application for judicial review, the other party is entitled to apply under the above provision to dismiss. The applicants have filed such application to seek leave for judicial review. However, are they interested in prosecuting such application? For good reasons, the limitation provided for in Order 16 Rule 4(2) provides for quick action on the part of the applicant to expedite the process for quick dispensation of all application for leave to apply for judicial review.

14. Rather than waiting for the Applicants/Respondents in making the application for judicial review, the First Respondents have come to apply to dismiss the application for judicial review. Application for leave to apply for judicial review involves a discretion which is exercised upon being satisfied of sufficient interests of an applicant: NTN Pty Ltd-v-Board of Post & Telecommunication Corporation & Ors [1987] PNGLR 70, see also Tapas-v-Tekum (5.11.99) N1921 or in the Application of Evangelical Lutheran Church of Papua New Guinea [1995] PNGLR 276.

15. On this application I am satisfied that, there was undue delay in applying for judicial review. Since filing the OS, no steps have been taken or made to prosecute the application for leave to apply for judicial review when it would be expected that the arguments raised by the lawyer for the First Respondents would be raised. The applicants have not moved their application for leave to apply for the review of the decisions by the two authorities named on the Originating Summons.

16. Having satisfied myself about the delay, I consider that there has been undue delay in making an application for leave to apply for judicial review and this Court has jurisdiction under the quoted provision of the National Court Rules to dismiss because the application by the applicants had been made after the relevant period had expired. The Court makes the following orders:

1. That pursuant to Order 16 Rule 4 (2) of the National Court Rules, the proceedings in OS. No.506 of 2012 (JR) is dismissed for undue delay and failure to make an application for leave for Judicial Review within four (4) months.
   
2. Pursuant to Order 16 Rule 4 (2) of the National Court Rules, the Applicants' Notice of Motion dated 23rd August 2012 is dismissed for non compliance with the requirements of filing an application for Judicial Review within four (4) months.
   
3. Costs shall be met by the Applicants payable within 21 days.
   

17. Having granted Order 2 in the First Respondents' Notice of Motion, there is no need for the Court to make orders in terms of Order 3 and 4 in their Notice of Motion.

Orders accordingly.
________________________________________________________________

Nimani & Associates: Lawyer for the Applicants
Amnol & Company Lawyers: Lawyer for the First Respondents
Solicitor General: Lawyer 2nd - 4th Respondents