Central Pomio Logging Corporation Pty Ltd v The Independent State of Papua New Guinea and Others [1990] PNGLR 195

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ
• Judgment Date: 01 June 1990
• Court: National Court
• Citation: [1990] PNGLR 195
• Year: 1990
• Judgement Number: N845

Full Title: Central Pomio Logging Corporation Pty Ltd v The Independent State of Papua New Guinea and Others [1990] PNGLR 195

National Court: Kapi DCJ

Judgment Delivered: 1 June 1990

N845

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CENTRAL POMIO LOGGING CORPORATION PTY LTD

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND OTHERS

Waigani

Kapi DCJ

12 May 1990

18 May 1990

21-24 May 1990

1 June 1990

ADMINISTRATIVE LAW — Judicial review of administrative acts — Application for leave — Where statutory remedies pursued — Remedies not alternative — Judicial review not available — Customs Act (Ch No 101), s 178.

CUSTOMS — Customs control — Clearance of goods for export — Dispute as to — Dispute referred to Comptroller of Customs — Same dispute cannot be subject of judicial review — Customs Act (Ch No 101), s 178.

The Customs Act (Ch No 101), s 178, provides:

" (1) If a dispute as to a matter not involving a contravention of this Act arises under this Act or in relation to the customs, the matter may, at the request of the persons interested, be referred to the Comptroller for decision and the Comptroller may, in such manner as he thinks proper, inform himself as to the circumstances, and determine the matter.

(2) A determination by the Comptroller under Subsection (1) is final."

Held

Where an interested person opts to refer a matter to the Comptroller of Customs under s 178 of the Customs Act, he cannot also seek to challenge the decision by way of judicial review.

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 101, applied.

Cases Cited

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 101.

National Capital District Interim Commission v Bogibada Holdings Pty Ltd [1987] PNGLR 135.

Rundle v Motor Vehicles Insurance (PNG) Trust No (1) [1988] PNGLR 20.

Application for Judicial Review

This was an application for judicial review pursuant to the National Court Rules, O 16.

Counsel

C Coady, for the plaintiff.

Z Gelu with P Harricknen, for the defendants.

Cur adv vult

1 June 1990

KAPI DCJ: This is an application for judicial review pursuant to O 16 of the National Court Rules. The leave for review was granted by Kidu CJ on 15 May 1990.

Pursuant to O 16, r 5 of the National Court Rules the applicant has applied for judicial review by notice of motion. Several orders were sought in the notice of motion but during the course of the hearing of this matter, the application has been reduced to seeking the following orders:

(1) An order by way of mandamus directed to the second defendant to consider according to law an application by the plaintiff for approval and or clearance of an export entry for export of a certain parcel of logs on board the MV No 3 Kendari from Rabaul.

(2) An order by way of declaration that the plaintiff has complied with all lawful requirements of timber permits TP15-16 and the laws of Papua New Guinea in and about the harvesting and export of a certain parcel of logs on the MV No 3 Kendari for shipment on 27 April 1990.

(3) An order by way of declaration that upon the plaintiff having paid or tendered to the Provincial Forests Officer at Rabaul royalty payments for all logs harvested and taken from the Timber Permit Area TP15-16 that no further permits, licences or approvals are necessary to be obtained from the Forestry Department for the export of logs upon which those royalties have been paid or tendered.

Let me set out the circumstances under which the present dispute arose. The Central Pomio Logging Corporation Pty Ltd, the plaintiff, applied and obtained a permit under s 10 of the Forestry Act (Ch No 216). This permit commenced on 1 November 1980 for a period of ten years and it relates to the Pomio-Rak Reva (Waterfall Bay) in the East New Britain area.

The plaintiff entered into a contract of sale of logs with Imanaka Ltd, a Japanese company in Osaka, Japan.

The ship MV No 3 Kendari arrived on 28 April 1990 at Gonaile where the plaintiff operates its business and loaded logs for export for Imanaka Ltd in Japan. On 4 May 1990, the agents for the plaintiff approached the Collector of Customs at Rabaul for the purpose of arranging a clearance of the ship and its cargo. However, the Customs officer, Philip Naime, would not clear the ship. A number of grounds were raised for refusing to clear the ship. It is not necessary to deal with all of these matters as they do not form part of the issues for determination in this hearing. For the purposes of this hearing, Mr Naime refused to clear the ship on the basis that amongst the logs that were loaded on MV No 3 Kendari there was a group of logs which are referred to as "fresh logs" which were loaded without being checked by the Forestry officers, for species identification, for scaling and grading of the logs. These reasons were later confirmed in a letter dated 10 May 1990 written by Mr Philip Naime, Acting Collector of ustoms, to the Central Pomio Logging Corporation. After the plaintiff was refused the clearance of the logs on 4 May, it referred the matter to the Comptroller of Customs in Port Moresby under s 178 of the Customs Act (Ch No 101). Section 178 is in the following terms:

" (1) If a dispute as to a matter not involving a contravention of this Act arises under this Act or in relation to the customs, the matter may, at the request of the persons interested, be referred to the Comptroller for decision and the Comptroller may, in such manner as he thinks proper, inform himself as to the circumstances, and determine the matter.

(2) A determination by the Comptroller under Subsection (1) is final."

For the purposes of this provision, counsel for the plaintiff has treated the dispute in this case, namely the non-clearance of the goods for export on the basis that certain logs were not checked by the Forestry officers for species identification, scaling and grading, as a matter not...