Dale Christopher Smith v Minister for Lands and The Independent State of Papua New Guinea and NCD Water & Sewerage Limited Trading as Eda Ranu (2009) SC973

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ, Mogish J, Cannings J
• Judgment Date: 01 June 2009
• Court: Supreme Court
• Citation: (2009) SC973
• Docket Number: SCA NO 8 OF 2003
• Year: 2009
• Judgement Number: SC973

Full Title: SCA NO 8 OF 2003; Dale Christopher Smith v Minister for Lands and The Independent State of Papua New Guinea and NCD Water & Sewerage Limited Trading as Eda Ranu (2009) SC973

Supreme Court: Injia CJ, Mogish J, Cannings J

Judgment Delivered: 1 June 2009

SC973

PAPUA NEW GUINEA

IN THE SUPREME COURT OF JUSTICE

SCA NO 8 OF 2003

BETWEEN

DALE CHRISTOPHER SMITH

Appellant

V

MINISTER FOR LANDS

First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

NCD WATER & SEWERAGE LIMITED TRADING AS EDA RANU

Third Respondent

WAIGANI : INJIA CJ, MOGISH J, CANNINGS J

25 NOVEMBER 2008, 1 JUNE 2009

Judicial review – decision-making process of the National Court – duty of trial judge to clearly and separately address grounds of review and remedies.

Appeals – decision-making process of appellate courts – duty of appellate court to separately address grounds of appeal and consequential orders – Supreme Court Act, Section 16.

The appellant’s land was compulsorily acquired by the State under the Land Act 1996. In the National Court he applied for judicial review of the decisions of the Minister for Lands that led to the compulsory acquisition. He relied on three grounds of review and sought orders in the nature of certiorari quashing the Minister’s decisions and declarations that the compulsory acquisition was unlawful and that he was still the registered proprietor of the land. The National Court appeared to uphold the grounds of review but failed to grant the relief sought by the appellant, instead ordering that he be paid compensation. He appealed to the Supreme Court principally on the ground that the trial judge erred by ordering compensation and not granting him the relief that he sought; and asked the Supreme Court to quash the National Court’s decision and make the orders that he had sort in the National Court.

Held:

(1) When the National Court hears an application for judicial review the judgment of the trial judge should convey two discrete decisions, and the reasons for them. First, whether the grounds of judicial review are upheld. Secondly, if one or more are upheld, whether the remedies sought by the applicant are, in the exercise of the court’s discretion, granted (Mision Asiki v Manasupe Zurenuoc (2005) SC 797 considered).

(2) A similar principle applies to appeals. The appellate court first decides whether one or more of the grounds of appeal are upheld. If yes, it proceeds to exercise its discretion as to what relief, if any, should be granted.

(3) In a civil appeal to the Supreme Court, the Court’s discretion as to what relief, if any, should be granted, is exercised under Section 16 (decision etc on appeal) of the Supreme Court Act, which states:

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may—

(a) adjourn the hearing from time to time; or

(b) affirm, reverse or modify the judgement; or

(c) give such judgement as ought to have been given in the first instance; or

(d) remit the case in whole or in part for further hearing; or

(e) order a new trial.

(4) In the present case, the trial judge erred in law by not making a clear decision on whether the grounds of review were upheld and by not clearly and separately addressing the issue of what the appropriate remedy was.

(5) The appeal was accordingly upheld and the Supreme Court in the exercise of its discretion under Section 16(e) of the Supreme Court Act ordered a new trial.

Cases cited

The following cases are cited in the judgment:

Isaac Lupari v Sir Michael Somare (2008) N3476

Island Helicopter Services Ltd v Wilson Sagati (2008) N3340

Jeffrey Afozah v The Police Commissioner (2008) N3300

John Joe Nemambo v Peter Peipul (1994) SC475

Koitachi Ltd v Walter Schnaubelt (2007) SC870

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Nancy Tambe v Linda Tamsen (2004) N2714

Paul Asakusa v Andrew Kumbakor (2008) N3303

Paul Saboko v Commissioner of Police (2006) N2975

Ramu Nickel Limited v Dr Puka Temu MP (2007) N3116

APPEAL

This was an appeal against orders of the National Court made in an application for judicial review.

Counsel

B Frizzell for the appellant

R Thompson for the third respondent

BY THE COURT: Dale Christopher Smith, the appellant, is appealing against the orders made by the National Court in an application for judicial review.

Mr Smith was the applicant in the National Court. He was the registered proprietor of a 78-hectare parcel of land in the Nine Mile area on the outskirts of Port Moresby. In February 2000, 14.79 hectares of his land was compulsorily acquired by the State under the Land Act 1996. It has since been developed by Eda Ranu, the third respondent, and is now the site of a pumping station and other facilities that are part of the Port Moresby water supply system.

In the National Court, Mr Smith argued that various decisions of the Minister for Lands, the first respondent, which resulted in his land being compulsorily acquired, were made contrary to the Land Act. He sought orders in the nature of certiorari quashing the Minister’s decisions. He also sought declarations that the compulsory acquisition was unlawful and that he is still the registered proprietor of the land.

Mr Smith’s application for judicial review, OS No 402 of 2002, was heard by Sheehan J who, on 20 December 2002, ordered that Mr Smith be compensated with the sum of K370,000.00 for the compulsory acquisition of his land. Mr Smith is aggrieved by that decision. He says that he does not want compensation. He wants his land. He wants a declaration that his land was unlawfully acquired by the State and that he is still the registered proprietor. He says that he did not ask for compensation in the National Court and that the trial judge misconstrued concessions made by his counsel and erred in law.

The issues we have to determine are:

1 Did the trial judge misconstrue concessions made by the appellant’s counsel at the trial?

2 Did the trial judge uphold the appellant’s grounds of judicial review?

3 Did the trial judge err in law by ordering compensation?

4 If the trial judge erred, what orders should the Supreme Court make?

1 DID THE TRIAL JUDGE MISCONSTRUE CONCESSIONS MADE BY THE APPELLANT’S COUNSEL AT THE TRIAL?

Mr Frizzell, for the appellant, submits that the trial judge was led into error because he misconstrued the appellant’s concession, made at the trial, that the State did have the power to compulsorily acquire the land. Mr Frizzell submits that the concession was only made in general terms. It was conceded that the power was available under the Land Act, Section 13, but it was not conceded that the power was properly exercised in this case.

Mr Frizzell points to the following passage from the trial judge’s judgment:

Since commencement of the proceedings the plaintiff has conceded the power of the State to compulsorily acquire the land. The compass of the dispute now resolving to one issue namely the fair compensation to be paid for the land acquired.

Mr Frizzell submits that the first proposition – that the appellant conceded the power of the State to compulsorily acquire the land – was, in general terms, correct. But the second proposition – that the issue before the court was about compensation – was not correct. He concedes that at the trial there was evidence about compensation but stresses that the appellant never resiled from his argument that the appropriate relief was certiorari to quash the Minister’s decisions and declarations that the acquisition was null and void and that the appellant was still the registered proprietor.

Ms Thompson, for Eda Ranu, the third respondent, did not effectively counter these arguments and we find them to have considerable merit.

We have examined the originating summons and the statement filed under Order 16, Rule 3(2)(a) of the National Court Rules. That statement is a critical document. It sets the parameters of a judicial review proceeding (John Joe Nemambo v Peter Peipul (1994) SC475; Koitachi Ltd v Walter Schnaubelt (2007) SC870; Nancy Tambe v Linda Tamsen (2004) N2714; Paul Saboko v Commissioner of Police (2006) N2975; Paul Asakusa v Andrew Kumbakor (2008) N3303). It sets out the grounds on which the applicant for judicial review challenges the decision being reviewed and the remedies being sought. Once leave for judicial review is granted, an applicant is not permitted to deviate from the grounds relied on or remedies sought without the leave of the court (see Order 16, Rules 6(1) and (2) of the National Court Rules). In this case there were three grounds relied on, and they were all concerned with alleged breaches of Section 13(6) of the Land Act by the Minister for Lands. The relief sought was confined to certiorari and declarations. There was no mention of compensation. Leave was neither given nor sought to amend the Order 16, Rule 3(2)(a) statement.

We have examined the transcript of the proceedings in the National Court. We agree with Mr Frizzell (who was the appellant’s counsel in the National Court as well as before us) that it contains no evidence of any concession by the appellant that his land was...