Amadio Pty Ltd v The State, Patterson Lowa, Isaac Moke and Mt Kare Holdings Pty Ltd

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 05 June 1992
• Citation: [1992] PNGLR 218
• Court: National Court
• Year: 1992
• Judgement Number: N1078

National Court: Woods J

Judgment Delivered: 5 June 1992

N1078

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AMADIO PTY LTD

V

THE STATE AND PATTERSON LOWA,

ISAAC MOKE, AND MT KARE HOLDINGS PTY LIMITED

Mount Hagen

Woods J

22 May 1992

5 June 1992

JUDICIAL REVIEW — Leave — Ex parte — Leave to appear — Constitutional principles require a fair hearing — general principles.

Facts

This was an application for leave to review the decision of the Minister for Minerals and Energy to extend the Prospecting Authority of Mt Kare Holdings Pty Ltd. for a further 2 years.

The plaintiff, which was a company of customary land owners, alleged that it had lodged a prior application for a PA which was not given adequate consideration.

Held

The Court granted leave, holding that the plaintiff had an arguable case.

Cases Cited

Papua New Guinea case cited

Ombudsman Commission v Donohue [1985] PNGLR 348.

Other cases cited

Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935.

R v Electricity Commissioners ex parte London Electricity Joint Committee Company (1920) Ltd [1924] 1 KB 171.

Counsel

J Reeve, for the plaintiff.

J Puringi, for the first, second and third defendants.

E Anderson, for the fourth defendant.

5 June 1992

WOODS J: This is an application under Order 16 of the National Court Rules for leave to apply for judicial review to quash the extension of the term of Prospecting Authority 591, which extension was granted by the State to the fourth defendant in September 1991.

There are various expressions of how judicial review may arise, but one leading quotation is that of Lord Justice Atkin in R v Electricity Commissioners ex parte London Electricity Joint Committee Company (1920) Ltd [1924] 1 KB 171 at 205:

"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division."

In the case Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935, the Court has confirmed the principle that prerogative orders, and in our jurisdiction the judicial review procedure in Order 16, will issue to any body which exercises authority given to it by statute.

In the case before me now, the Minister for Minerals and Energy has the power by statute to grant prospecting authorities and has done so, and the plaintiff is coming to this court as a party aggrieved or affected seeking a review of this grant.

The plaintiff submits to this court that it had applied for the prospecting authority over the land the subject of the grant and, further, that it is a company owned by persons who claim to have an interest according to custom in the land. On these claims, I am satisfied that it may be a person who would be entitled to seek review.

EX PARTE, OR LEAVE FOR OTHER PARTIES TO APPEAR

At the hearing of this application for leave lawyers representing the defendants sought leave to appear and respond to the application. Their applications were objected to by the lawyer for the plaintiff, who emphasised the wording of Order 16 that an application for leave for judicial review is made by originating summons ex parte to the court.

There are many cases, both English and Papua New Guinean emphasising the ex parte nature of such an application. A good statement is that in Ombudsman Commission v Donohue [1985] PNGLR 348 in the judgment of...