Aquila Sampson v National Executive Council and Robert Alphonse Kaiyum and the Independent State of Papua New Guinea (2019) SC1880

• Jurisdiction: Papua New Guinea
• Judge: Kassman, Toliken & Anis, JJ
• Judgment Date: 26 November 2019
• Court: Supreme Court
• Citation: (2019) SC1880
• Docket Number: SCM No 3 of 2019
• Year: 2019
• Judgement Number: SC1880

Full Title: SCM No 3 of 2019; Aquila Sampson v National Executive Council and Robert Alphonse Kaiyum and the Independent State of Papua New Guinea (2019) SC1880

Supreme Court: Kassman, Toliken & Anis, JJ

Judgment Delivered: 26 November 2019

SC1880

PAPUA NEW GUINEA

[IN THE SUPEREME COURT OF JUSTICE]

SCM NO. 3 OF 2019

BETWEEN

AQUILA SAMPSON

Appellant

AND

NATIONAL EXECUTIVE COUNCIL

First Respondent

AND

ROBERT ALPHONSE KAIYUM

Second Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

Waigani: Kassman, Toliken & Anis, JJ

2019: 1 May & 26 November

SUPREME COURT – Notice of Motion – Order 10 – Supreme Court Rules – appeal against refusal of leave to apply for judicial review – exercise of discretion by the trial Court - sufficient interest – whether trial judge erred in refusing leave based on lack of sufficient interest – whether personal interest should be the sole determining factor when considering sufficient interest – whether public interest or complaint raised as a citizen should also be considered as sufficient to constitute sufficient interest – whether other considerations namely arguable case, delay and exhaustion of administrative remedies should have also been considered – whether want of their considerations amounts to improper exercise of the discretion

Cases cited:

Jim Kas v. Sevua and Ors (2000) N2010

Kenn Norae Mondiai v. Wawoi Guavi Timbers Co. Ltd (2007) SC886

Steamships Trading Limited v. Garamut Enterprises Ltd (2000) N1959

Re Petition of Michael Somare [1981] PNGLR 265

Counsel:

Mr P Tabuchi, for the Appellant

Mr L P Kandi, for the First and Third Respondents

Mr W Thomas, for the second Respondent

26th November, 2019

1. KASSMAN J: I have had the benefit of reading the draft judgment of Anis J and I agree with the reasoning and the orders that he proposes. I have nothing further to add.

2. TOLIKEN J: I too share the same view as Kassman J in relation to the reasoning and orders proposed by Anis J.

3. ANIS J: In this appeal, the appellant challenges a decision of the Judicial Review Court (leave Court). On 19 December 2018, the leave Court refused leave to the appellant to apply for judicial review. The appellant was aggrieved and filed this appeal by way of a notice of motion, that is, pursuant to Order 10 of the Supreme Court Rules.

GROUND OF APPEAL

4. The ground of appeal is, and I quote:

The Learned Trial Judge erred in law or mixed law and fact when His Honour refused leave for judicial review on the basis that the Appellant lacked sufficient interest because the First Respondent’s decision appointing him as Provincial Administrator had been rescinded before it was gazetted, when His Honour ought to have found instead, that the Appellant had sufficient interest to bring proceedings by way of judicial review because the recession of the decision appointing him as Provincial Administrator was not a recession done in accordance with the law as pleaded in the Appellant’s Order 16 Statement and this was sufficient to ground the Appellant’s locus standi.

BACKGROUND

5. The undisputed facts which had given rise to the judicial review proceeding at the National Court were as follows. On 7 June 2018, the appellant was appointed by the first respondent to be the Provincial Administrator of Western Province (the position). Before his appointment was gazetted, the first respondent, on 2 August 2018 and in a single act, revoked his appointment and appointed the second respondent to the position. The appellant was aggrieved by that decision, and on 17 October 2018, he filed an application for leave to apply for judicial review at the National Court. The proceeding was described as OS (JR) 734 of 2018.

6. The leave Court, upon hearing the application, refused to grant leave to the appellant to apply for judicial review. In its deliberation, the leave Court considered as its only issue, locus standi or sufficient interest (sufficient interest). It held that the appellant did not have sufficient interest. It did not proceed further after its findings on standing. It dismissed the proceeding with costs.

ISSUE

7. In my view, the main issue for determination is this, whether sufficient interest should be assessed limited only to one’s personal interest in the public matter or complaint that is the subject of judicial review, or whether it (i.e., sufficient interest) should be considered broadly to include public policy considerations or public interest, in the exercise of the discretion of the leave Court.

THE LAW

8. Let me begin by stating the source that creates or states the term sufficient interest in judicial review proceedings. It is Order16 Rule 3(5) of the National Court Rules. It states, and I quote:

(5) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

CONSIDERATION

9. The leave Court, when considering the element sufficient interest, had relied on the case of Jim Kas v. Sevua and Ors (2000) N2010. Its quoted paragraph, which was extracted from Justice Sakora’s decision, reads, and I quote:

This enables the Court to be satisfied that the applicant is not a "meddlesome busy body". Thus, through this sub-rule the issue of locus standi is determined at the outset. The requirement of locus standi or standing determines who exactly is legally entitled to bring a particular dispute or claim before the Courts and invoke the powers of the Courts. Thus, once again, only meritorious interests gain access into the Courts. Some commentators use the term real interest to convey the same notion, as opposed to, for instance, an ideological concern in the outcome. Perhaps, yet another way of describing this requirement is as others have where they use the phrase genuine grievance rather than, say, litigation out of spite or malice.

(Underlining is mine)

10. With the greatest respect, I would differ from Justice Sakora’s view where he stated, and I quote, The requirement of locus standi or standing determines who exactly is legally entitled to bring a particular dispute or claim before the Courts and invoke the powers of the Courts. To me, it dives deep into the legal definition or consideration of the term sufficient interest. I would rather consider the term in its plain language or in the context at which it is used or applied in judicial review proceedings (that are filed under Order 16 of the National Court Rules). There are case authorities that support my differing view. For example, I refer to the Supreme Court case of Kenn Norae Mondiai v. Wawoi Guavi Timbers Co. Ltd (2007) SC886. Then Deputy Chief Justice Sir Mari Kapi, Justice Davani and Justice Lay stated at paragraph 79 of their judgment, and I quote:

79. In this country at our current stage of economic development we do not consider that it is appropriate to narrow the opportunities for interest groups to come to the court to point out what they consider is going wrong, that is unlawful conduct, in government departments and statutory authorities, provided what is complained of is the breach of a public duty by a public authority. There are very few individuals in the groups directly affected by legal actions, particularly concerning customary land, who have the resources to be able to come to the higher courts to get illegal conduct stopped and wrongs righted. In the future we do not rule out the possibility that if the allegations of illegality are sufficiently grave and the evidence of an arguable case sufficiently cogent at the leave stage, even a citizen with no other interests than to see the law upheld may have sufficient interest to bring the case.

(Underlining is mine)

11. Justice Sheehan, earlier and in the case of Steamships Trading Limited v. Garamut Enterprises Ltd (2000) N1959, held, and I quote in part:

Sufficient interest is essentially a mixed question of fact and law, a matter of fact and the degree of the relationship between the Plaintiff and the subject matter of his complaint. Generally a Plaintiff will have standing if he can show that he has reasonably arguable claim that by an invalid exercise of statutory power, some private right in law has been affected or that he has suffered some prejudice. But the right to invoke the Court’s supervisory jurisdiction is not restricted to protection of personal rights only. It can extend to more public issues. A broad brush analogy may be drawn with the status of citizen witnessing an indictable offence being committed. He has no legal obligation to intervene or to stop that offence but he does have the status to affect a citizens arrest

In determining standing, Court decisions in this country lean strongly towards the granting of status to citizens seeking to complain of what is seen as breaches of laws of the country. In brief the decisions show an inclusive rather than an exclusive view of applicants with standing, holding that challenges by citizens to the validity of decisions of statutory or public authorities should not too readily be excluded from the Courts on grounds of lack of direct personal involvement. Very often...