Alphonse Hayabe v William Powi, Acting Provincial Administrator of Southern Highlands Province and The Independent State of Papua New Guinea (2007) N3113

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn, J.
• Judgment Date: 27 March 2007
• Court: National Court
• Citation: (2007) N3113
• Docket Number: OS (JR) 46 Of 2007
• Year: 2007
• Judgement Number: N3113

Full Title: OS (JR) 46 Of 2007; Alphonse Hayabe v William Powi, Acting Provincial Administrator of Southern Highlands Province and The Independent State of Papua New Guinea (2007) N3113

National Court: Hartshorn, J.

Judgment Delivered: 27 March 2007

N3113

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 46 OF 2007

BETWEEN:

ALPHONSE HAYABE

Plaintiff

AND:

WILLIAM POWI, ACTING PROVINCIAL ADMINISTRATOR OF SOUTHERN HIGHLANDS PROVINCE

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Hartshorn, J.

2007: 16 & 27 March

JUDICIAL REVIEW – Decision of second Defendant to appoint first Defendant as Acting Provincial Administrator - Plaintiff contends he is Acting Provincial Administrator by virtue of Gazettal Notice - application for leave for judicial review involves the exercise of discretion – whether any useful purpose will be served if relieve sought is granted - no useful purpose would be served if the proposed judicial review sought by the Plaintiff were successful - leave for judicial review refused

Cases Cited

Hitolo v Geno, Chief Ombudsman, N2700

Ombudsman Commission v Dennis Donohe (1985) PNGLR 348

Ombudsman Commission v Peter Yama, SC747

Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd, SC488

Books

Halsbury’s Laws of England, 4th ed, Vol 1(1), par.117

Counsel

M. Muga, for the Plaintiff

J. Chillion, for the First & Second Defendants

27 March, 2007

1. HARTSHORN J: The Plaintiff seeks leave to proceed with an application for Judicial Review of:

“……the decision of the Second Defendant to appoint the First Defendant as Acting Provincial Administrator of Southern Highlands Province, gazetted in the National Gazette on 23rd May 2006”.

2. The Plaintiff contends that he is the Acting Provincial Administrator for the Southern Highlands Province by virtue of a Gazettal Notice dated 13 September 2006, published in National Gazette G178 dated 13 September 2006. That same gazettal notice contained the revocation of the First Defendant as Acting Provincial Administrator for Southern Highlands Province in addition to the appointment of the Plaintiff as the Acting Administrator of the Southern Highlands Province on and from 5th September 2006 until further notice.

3. The first question that is apparent is, if the Plaintiff has replaced the First Defendant as the Acting Provincial Administrator for the Southern Highlands Province why is the Plaintiff seeking to apply to judicially review a decision that was made some 3½ months earlier and which was subsequently revoked?

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.

A further matter that the courts should take into account in exercising its discretion is whether any useful purpose will be served if the relief sought is granted.

5. In Halsbury’s Laws of England 4th Edition vol. 1(1) par. 117:

“Another relevant consideration in deciding whether or not to grant certiorari or prohibition is the effect of doing so. If the remedy is unnecessary or futile an order will not be made. Thus, where grounds are made out upon which the court might grant the order, it will not do so when no benefit could arise in granting it”.

This principle has been referred to in decisions of this jurisdiction:

· In Ombudsman Commission of PNG v. Denis Donohe (1985) PNGLR 348 Amet, J. (as he then was) appears to acknowledge that there should not be an exercise of the discretion to grant leave if the relief sought served no utility or no practical purpose or if the relief did not determine the immediate rights of the Plaintiff.

· In Stettin Bay Lumber Company Pty Ltd v. Arya Ship

Management Ltd (SC488), a case not involving judicial review,

one of the prerequisites for declaratory orders was stated as

being that, “The issue must not be of merely academic interest,

hypothetical or one whose resolution would be of no practical

effect”.

6 Here, if the Plaintiff is successful in obtaining a review of the decision appointing the First Defendant as Acting Administrator, the Plaintiff does not gain anything that he does not have now, as the decision appointing the First Defendant has been superseded by the decision revoking the appointment...