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Papua New Guinea Customs Brokers, Inc v Paul [2019] PGNC 246; N8033 (4 October 2019)

N8033

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 664 OF 2019

PAPUA NEW GUINEA CUSTOMS BROKERS ASSOCIATION, INC.
Plaintiff

V
RAY PAUL in his capacity as CHIEF COMMISSIONER OF PAPUA NEW GUINEA CUSTOMS SERVICE
First Defendant

And
PAPUA NEW GUINEA CUSTOMS COUNCIL
Second Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2019: 04th October

PRACTISE & PROCEEDURE – Judicial Review & appeals –Originating summons Order 16 Rule 3 (2) NCR –Application for Leave – Statement of Facts Order 16 Rule 3 (2) (a) NCR –Affidavit verifying facts - Order 16 Rule 3 (2) (b) NCR – affidavit in support – Standing locus Standi – decision of Public Body –Arguable case –no alternative administrative avenue – no delay - within time – grounds for leave made out – leave granted – cost in the cause.

Cases Cited:

Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016.)
Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] PGSC 89; SC1746 (20 September 2018)
McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279
NTN Pty Ltd v The Board of the Post & Telecommunication Corporation & Others [1987] PNGLR 70
Ombudsman Commission of PNG v Denis Donohoe [1985] PNGLR 348 (3 December 1985)
Papua New Guinea Air Pilots Association v Director of Civil Association and the National Airlines Commission [1983] PNGLR 1
Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008)
Yama Group of Companies Ltd v PNG Power Ltd [2005] PGNC 128; N2831 (17 May 2005)

Counsel:

R. Diweni, for Plaintiff
No appearance for Defendants

RULING
04^th October, 2019

1. MIVIRI, J: This is the Ruling on the Application pursuant to Order 16 Rule 3 (2) of the National Court Rules, (“the Rules”) for leave for Judicial Review by the Applicant against the decision of the First Defendant in his capacity as the Chief Commissioner published in the Post Courier page 44 of Wednesday 11^th September 2019 giving notice to configure the Asycuda World access for brokers to effective 1^st October 2019:

(a) automatically block brokers/agents from accessing and processing new (customs) declarations where duties and charges on the declarations they process remain unpaid after five working days; and (b) suspend and subsequently cancel those brokers licences if they fail to comply to settle their outstanding liabilities.
(c) he seeks that the defendant pay the costs of this proceedings.
(e) Time for entry of the order be abridged to the time of settlement of the order which shall take place forthwith.

2. This matter was initially brought by counsel for moving of the motion on 1^st October 2019 there was no appearance either by the office of the Solicitor General or any lawyer representing the defendants. Because it involved the State, direction was issued for the applicant through counsel to notify of the new hearing date on 4^th October 2019 and to cause affidavit to be placed on file to comply with the direction given. Counsel has complied and deposed to that effect by affidavit of service dated the 2^nd October 2019 filed 4^th October 2019 including notification of today's hearing date by letter annexure. This was to heed Section 8 of the Claims By and Against State Act. A further three clear days was given to the State to come forward and be heard but to no avail. It would not have served well for the applicant to be further delayed in view of the material he presented set out above. Accordingly, this hearing has proceeded without counsel from the State or Defendants.

3. In the preliminary the Originating Summons filed is of the 26^th September 2019. The Statement pursuant to Order 16 Rule 3 of the Rules is also of the same date. Including the affidavit verifying the fact also dated the same. On top of that he has a Notice of Motion also dated the same seeking Stay should leave be granted. He relies on Order16 Rule 3 (8) (a) of the Rules in so asking. I will address after the leave application.

4. He argues that leave can be granted by virtue of Section 155 (3) and (4) of the Constitution the Courts jurisdiction. The implementation is by Order 16 of the National Court Rules.

5. That he satisfies all the requirements of leave on the required balances to be so accorded. He has standing to bring this proceeding because the association is an incorporated association under Section 10 of that Act he can sue and be sued. And the membership are customs brokers and agents in Papua New Guinea. Whose objective includes advancing the interests of its members in revenue generation initiatives in customs brokerage. In this regard he relies on the affidavit of Nathaniel Baloiloi of the 26^th September 2019. In law seeks Papua New Guinea Air Pilots Association v Director of Civil Association and the National Airlines Commission [1983] PNGLR 1 as the basis that indeed as an association they have standing to pursue as now. He argues that there is actual and apprehended injury to his business or economic interest, property or proprietary rights, social or political interests.

6. There is no delay because the decision subject of the challenge was published in the Post Courier of 11^th September 2019. Here the proceeding pursuant were instituted on the 26^th September 2019 just 15 days after because this Application is seeking certiorari which is within 4 months and that has been done here. He relies on NTN Pty Ltd v The Board of the Post & Telecommunication Corporation & Others [1987] PNGLR 70.

7. He argues that there are no administrative appeals on disputes similar to that under the Customs Act or the Papua New Guinea Customs Service Act 2014 provide. And he has sought to comply under the auspices of section 178 other disputes under the Customs Act as depicting the present and raised the matter by letter that he has attached to the affidavit of Nathaniel Baloiloi. There has been no response pursuant despite raising it. He argues that he has in this regard satisfied the internal dispute resolution within. He has therefore come to court. He satisfies that ground he argues.

8. Further he says he has an arguable case satisfying Order 16 Rules 2, 3, and 5 of the Rules. That it is not the merits but prima facie and relies on Ombudsman Commission of PNG v Denis Donohoe [1985] PNGLR 348 (3 December 1985). Prima facie it is arguable because Plaintiff says the First Defendant decision is ultra vires is based on an error of law and unreasonable. The Customs Act empowers refuse of clearance of goods and to recover by auction for any duties unpaid and owing. Here he has arbitrarily barred them via the Asycuda World which is relied on by the applicant to conduct their business. It is a penalty not founded in law which unjustly deprives of the applicant their legitimate cause of living and doing business.

9. I have thoroughly considered his arguments and the materials that he has placed before the court in support and am swayed that indeed prima facie he has made out a case for leave to be granted. He has standing or locus standi and he has set it out very well with the authority in law enabling. He satisfies this ground.

10. I am further satisfied that to the required balance of probabilities that he has not delayed and come within time to bring this matter to the court. He succeeds on this ground.

11. I am further satisfied that he has discharged to the required balance of probabilities to settle the matter by the process within the Customs Act there are letters to that effect that he has placed as annexure to the affidavit of Nathaniel Baloiloi satisfying this fact. The only other avenue is now the courts and he is properly before the court satisfying this requirement for leave. This is not a dispute contravening the Customs Act so much so that a notice has been effected to the applicant in that regard. This is a software program that is used to monitor and to get duty into the system accessed by the parties on each end that has its administration in the hands of the defendant who has elected to shut out the applicant plaintiff and those who are represented by his association if after five days duty is not forthcoming. I deduce this from counsel submission and the material he has placed in reliance. There is a notice in the Post Courier that this was taking place, but it does not take account of those who rely on the brokers and customs agents for their business who in turn rely vice versa. On business terms it would be large amounts of money in and out. Therefore, a very serious matter that must be properly addressed prima facie. To delay it any further which is not the nexus of leave in judicial review would be injustice to the applicant. For these reasons this ground is made out on the balance of probabilities by the applicant.

12. This in turn also covers adequately that the applicant has an arguable case prima facie and reading Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] PGSC 89; SC1746 (20 September 2018) where matters set out here are considered including delay the Supreme Court quashed the National court decision to grant leave. The facts in that case are not same here and would be on par to allow the application considering. Also, in the light of the views in this matter are Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008) which is in similar vein as Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016).

13. The Applicant here has demonstrated good stead in his Application after consideration of all. He has met all requirements to the required balance and his application for leave for judicial review as sought is granted.
14. Plaintiff will cause the substantive motion to be filed and served on the Defendants within 14 days:

1. The Parties are granted leave to file and serve any affidavits that they may seek to rely on within 21 days.
   
2. The Plaintiff is to serve a draft statement of agreed and disputed facts and legal issues and the draft index within 10 days thereafter.
   
3. The Defendants are to comment and respond within 10 days.
   
4. The Plaintiff is to settle, file and serve the Statement of agreed and disputed facts and the legal issues within 10 days.
   
5. The Plaintiff is to settle, file and serve the duly certified Review Book within 10 days thereafter.
   
6. The matter will return to court on Monday the 1^st of November 2019 at 9.30 for directions.
   
7. Costs are in the cause.
   
8. The time for entry of these orders is abridged to the time of the settlement by the Registrar which shall take place forthwith.
   

15. The Application for an interim stay after consideration of McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279 (30 June 2000) and Yama Group of Companies Ltd v PNG Power Ltd [2005] PGNC 128; N2831 (17 May 2005) is not granted. In this case the test for a successful application for stay should be whether there are special or exceptional circumstances or that there is a good reason or that it is an appropriate case is restrictive. What is important to articulate are the factors and circumstances that may be relevant or appropriate differ from case to case. Here this case is that it relates to the first defendant arbitrarily barring the plaintiff via the Asycuda World which is relied on by them to conduct their business. It is a penalty not founded in law which unjustly deprives the applicant their legitimate cause of living and doing business. It also prevents the defendants to earn revenue for the state. This principal factor, reason, or circumstance works both ways against, in that both will be losing money and revenue. It would be more compelling to have inter party hearings given than an interim stay. There are no special circumstances or reason to deviate other than to call inter party hearing on the matter.

16. Accordingly, the Motion for Interim Stay is not granted but adjourned to the next directions date Thursday 10^th October 2019 for further directions. Applicant will cause a notice to that effect upon the Defendants.

17. Costs will be in the cause.

Orders Accordingly
__________________________________________________________________
Diwenis Lawyers: Lawyer for the Plaintiff Applicant
No appearance: Lawyer for the Defendants