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Dick v Investpac Ltd [2021] PGNC 214; N8928 (7 July 2021)

N8928

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 75 OF 2020 (IECMS)


BOKE DICK
Plaintiff


AND:
INVESTPAC LIMITED
First Defendant


AND:
HON. JOHN ROSSO, MINISTER FOR LANDS & PHYSICAL PLANNING
Second Defendant


AND:
SAMSON BENJAMIN SECRETARY FOR LANDS & PHYSICAL PLANNING

Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


Waigani: Miviri J
2021: 10th June, 7th July


PRACTICE & PROCEDURE – Originating Summons – Application for Leave for Judicial Review – Statement in support – Standing – Delay – Internal Avenues exhaustion – arguable basis of – Materials relied sufficient – balance discharged – Motion grantd – Cost follow event.


Cases Cited:


NTN Pty Ltd v Board of the Post & Telecommunication Corporation [1987] PNGLR 70; N587

Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Counsel:


M. Philip, for Plaintiff
H. Wangi, for Defendant


RULING

07th July, 2021

  1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons dated the 30th November 2020 seeking leave to review the decision of the Minister to recommend to the head of State to reverse the recommendation of the Land Board and to grant the State lease to the Plaintiff.
  2. The Statement in support filed 30th November 2020, details that review is sought to overturn the decision of the Land Board made in meeting No.1 of 2018, to grant the state Lease of land described as Allotment 81 section 1 in Kiunga Town to the plaintiff/applicant. The second defendant/respondent’s decision made and published on the 02nd November 2020 in the National Gazette No. G371 advising the head of state to grant the lease to the First Defendant/ Respondent through an appeal process.
  3. He pleads that leave be granted him pursuant to Order 16 Rule 3 of the National Court Rules, because the decision was unreasonable and is outside the Wednesbury principle. Further that an order in the nature of a declaration be accorded him because the decision of the second respondent to recommend to the head of state to grant the Lease described as Section 1 Allotment 81 was biased, unfair and unreasonable within the Wednesbury principles of unreasonable. Further that an order in the Nature of Certiorari lies for that decision to be removed into court quashed.
  4. He relies in so pursuing on his originating summons filed of the 30th November 2020, notice of motion also filed of that date, affidavit in support by himself Boke Dick sworn and filed also of that date, a notice for leave to apply for Judicial review pursuant to Order 16 Rule 3 of the NCR filed also of the same date, affidavit verifying his facts sworn 23rd November 2020 filed 30th November 2020, included an undertaking as to damages also of the same date, and a statement pursuant to Order 16 Rule 3 (2) (a) of the Rules. All adequately cover his process instituted for leave for Judicial review from which he moves pursuant.
  5. He was the successful applicant recommended by the land Board to be granted the State Lease described as Section 1 Allotment 81 Kiunga Western Province. He had filled up that Land at the back of where he had operated a small business from 2014, to 2015. He sought the Provincial Land Authority to assist him to convert it into a registered State Lease. He was encouraged by them to do what he did. And they assisted with an investigation from which an inspection report was produced. And because of that assistance the plaintiff sought and made a submission to the land Board on the 10th April 2017. Also, on the 21st March 2017 he filled out a tender form 23/2017. It was an open tender. An open and transparent process encouraging invitation on it from others also. It ended with grant to him as successful applicant. From which he followed up with the lands department for the title documents May 2018. He was advised of an appeal and for him to follow up after it. He was confident of confirmation and favourable outcome with the documentation that he had lodged. Included expenditure of substantial amount of money on the subject land. But that was to no avail as the decision was overturned on appeal and granted to the First Defendant.
  6. Lawyers acting for the plaintiff followed to get the decision overturning but were not supplied as to the reasons for overturning. On the 17th November 2020 he received a letter from the Appeals Officer of the PNG land Board formally advising of the decision of the head of state with a National Gazette dated 02nd November 2020 to that effect. He followed through on 18th November 2020 requesting copy of the appeal, grounds of the appeal and constitution of the appeal committee. Which was responded to that it was considered by the Minister. It could not be confirmed whether the provisions of section 62 of the Land Act 1996 were complied with by the first respondent. Particularly as to whether or not the Minister did consider the appeal.
  7. The plaintiff contends that the decision overturning was biased, unfair, unreasonable within the Wednesbury principles. It could not have been made given by a tribunal placed given the facts set out above. There was no documentation on the lands file in this respect which was not the subject of consideration in the decision following. It could not stand in law and was an arguable basis in favour for the plaintiff. Given materially that judicial review was concerned primarily with the process in which the decision was made. Here by a Public Office by a public Officer without any reasons basing as to why it was overturned from the initial grant: NTN Pty Ltd v Board of the Post & Telecommunication Corporation [1987] PNGLR 70.
  8. In this respect the plaintiff had demonstrated discharging the required balance of preponderance that he had standing in the matter. It directly affected him and it emanated from the decision of a public Official. It was arguable that no reasons were disclosed as to why the initial grant to him was overturned on the appeal. What the reasons and the basis of that decision and so he qualified the locus standie basis for grant of leave: Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008). His pleading and his facts did accommodate that fact for basis to be granted leave for judicial review. This ground was made out on the required balance justifying.
  9. There was no delay in pursing what was a cause of action open to him given his facts set out above. He satisfied this requirement: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). His pleadings sufficiently settled on the required balance and left no other avenue than to grant him as he pleaded leave for judicial review. Particularly mindful that judicial review was very restrictive and not an open charter for all to pursue as it pleased them. There was credible basis for the grant in the plea made by the plaintiff. His facts circumstances supported a genuine course for justice and review that was in order.
  10. Internal process and procedure within were exhausted and left no other avenue other than the hand of equity to do equity here called. That is clear by all set out above satisfying the requirement envisaged by the law here. What was sought here fulfilled that requirement and so it was all in favour that leave be granted as pleaded on the satisfaction of all grounds for leave.
  11. The plaintiff has in all the circumstances satisfied that leave be granted for judicial review. Accordingly leave is granted the plaintiff for judicial review of decision of the second defendant respondent’s decision made and published on the 02nd November 2020 in the National Gazette No. G371 advising the head of state to grant the lease to the First Defendant/ Respondent through an appeal process.
  12. The plaintiff will file the substantive notice of motion for judicial review within the next 14 days as of todays date 07th July 2021. His 14 days expires on the 26th July 2021. He shall serve the notice of motion upon all the parties effected by or before Friday the 30th July 2021. The matter will return for directions before the court on Monday 02nd August 2021 at 9.30am.
  13. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

Korerua & Associate Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor Generals: Lawyer for First Defendants

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