Helifix Group of Companies Limited v Papua New Guinea Land Board and Pepi S Kimas, Secretary, Department of Lands & Physical Planning and Hon Dr Puka Temu, Minister For Lands & Physical Planning and The Independent State of Papua New Guinea (2012) SC1150

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Yagi J, Sawong J
• Judgment Date: 24 January 2012
• Docket Number: SCM NO 13 0F 2010
• Court: Supreme Court
• Judgement Number: SC1150

Full Title: SCM NO 13 0F 2010; Helifix Group of Companies Limited v Papua New Guinea Land Board and Pepi S Kimas, Secretary, Department of Lands & Physical Planning and Hon Dr Puka Temu, Minister For Lands & Physical Planning and The Independent State of Papua New Guinea (2012) SC1150

Supreme Court: Cannings J, Yagi J, Sawong J

Judgment Delivered: 24 January 2012

SC1150

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO 13 0F 2010

BETWEEN:

HELIFIX GROUP OF COMPANIES LIMITED

Appellant

AND:

PAPUA NEW GUINEA LAND BOARD

First Respondent

PEPI S KIMAS,

SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING

Second Respondent

HON DR PUKA TEMU,

MINISTER FOR LANDS & PHYSICAL PLANNING

Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Cannings J, Yagi J, Sawong J

2011: 1 December,

2012: 24 January

JUDICIAL REVIEW – locus standi – whether an applicant for a State Lease has a sufficient interest in a decision of the Land Board to withdraw an application from the list of matters to be considered at a meeting of the Land Board – whether a decision of the Land Board to withdraw an application from the list of matters to be considered at a meeting of the Land Board is a decision susceptible to judicial review.

The Minister for Lands and Physical Planning exempted a portion of land from advertisement for the reason that the appellant had applied for the land for purposes of an urban development lease. The appellant proceeded to make an application for a State Lease over the land, which was gazetted amongst the list of applications to be considered by the Land Board at a forthcoming meeting. Instead of considering the application the Land Board decided, on advice from the Secretary for Lands, and without notice to the appellant, to withdraw the application from consideration. The appellant then applied to the National Court for leave to seek judicial review of that decision. Leave was refused for two reasons: (a) the appellant, being a mere applicant, lacked standing and (b) the appellant did not have an arguable case as the Land Board had not exercised any statutory powers capable of being reviewed. The appellant then appealed to the Supreme Court, arguing that the primary judge erred in law in refusing leave on each of those two grounds.

Held:

(1) The appellant, being a mere applicant for a State Lease, had no right or legitimate expectation capable of protection by judicial review and therefore lacked a sufficient interest in the matter to which the application for leave related.

(2) The decision of the Land Board was not made under any statutory provision and did not amount to a refusal to hear the appellant’s application for a State Lease. The decision was a simple matter of administration concerning the management of the business of the Board. Such a matter falls into the area of managerial or administrative discretion. It is not the sort of decision that is susceptible to judicial review.

(3) No error of law was made in refusing leave. The appeal was dismissed.

Cases cited

Papua New Guinea Cases

Darius v Commissioner of Police (2001) N2046

Kas v The State (2000) N2010

Medaing v Muling (2010) N4001

Mondiai v Wawoi Guavi Timber Company Ltd (2006) N3061

Mosoro v Kingswell Ltd (2011) N4450

West New Britain Provincial Government v Kimas (2009) N3834

Overseas Cases

R v Inland Revenue Commissioners; Ex parte National Federation of Self Employed and Small Business Ltd [1982] AC 617

APPEAL

This was an appeal against the refusal by the National Court of an application for leave for judicial review.

Counsel

J Haiara, for the appellant

W Mapiso, for the respondents

24 January, 2012

1. BY THE COURT: This is an appeal against the refusal of the National Court, constituted by Justice Sakora, to grant leave to the appellant, the Helifix Group of Companies Ltd, to seek judicial review of a decision of the first respondent, the PNG Land Board.

2. The Land Board decided on 19 February 2010 to withdraw from the list of matters which had been gazetted for its consideration at a meeting on that day, an application by the appellant for a State Lease over portion 1597, a 13.7-hectare block at Paga Hill, Port Moresby. The appellant had made the application for a State Lease on 4 November 2009 following the decision of the second respondent, the Minister for Lands & Physical Planning, on 14 September 2009 to exempt the land from advertisement for the reason that the appellant had applied for it for purposes of an urban development lease. The Land Board’s decision was made without notice to the appellant, on advice from the third respondent, the Secretary for Lands and Physical Planning, and the Registrar of Titles, who cautioned that portion 1597 was surrounded by controversy as a State Lease over it had previously been granted to another company, that it was unclear whether that lease had been revoked and that an urban development lease could not be exempted from advertisement. There followed an exchange of correspondence over several months between the appellant’s lawyers and the Secretary and the Deputy Secretary of the Department of Lands and Physical Planning. There was, however, no change in the Department’s position and the appellant’s application was not re-listed for consideration by the Land Board, so on 17 August 2010 the appellant commenced judicial review proceedings in the National Court.

3. The appellant argued in its statement under Order 16, Rule 3(2)(a) of the National Court Rules that the Land Board erred in law by refusing to consider its application for an urban development lease as the previous title holder’s rights over the land had been forfeited, the land had been exempted from advertisement, the appellant had satisfied all legal requirements for its application to be considered and there was no legal impediment to the Board’s consideration of its application. It was further argued that the Board breached its duties to inform the appellant of its proposed decision and the reasons for it and to accord to the appellant a reasonable opportunity to be heard, thereby denying natural justice to the appellant and being unreasonable and giving rise to a reasonable apprehension of bias.

4. The appellant’s application for leave for judicial review was heard on 7 October 2010 and on 12 October 2010 the primary Judge delivered an oral ruling, refusing to grant leave for two reasons: (a) the appellant, being a mere applicant, lacked standing and (b) the appellant did not have an arguable case as the Land Board had not exercised any statutory powers and therefore its decision to withdraw the application from its consideration was not capable of being judicially reviewed. The appellant has appealed to the Supreme Court, arguing that the primary Judge erred in law in refusing leave on each of those two grounds.

GROUND (a): ERROR OF LAW BY FINDING THAT THE APPELLANT LACKED STANDING

5. It is one of the prerequisites to the granting of leave, prescribed by Order 16, Rule 3(5) of the National Court Rules, that the Court “considers that the applicant has a sufficient interest in the matter to which the application for leave relates”; alternatively described as the locus standi or standing requirement. Other prerequisites are that the decision sought to be reviewed must be that of a public body, the applicant has an arguable case, the applicant has exhausted the available administrative remedies before seeking judicial intervention and there has been no undue delay in making the application (Kas v The State (2000) N2010, Darius v Commissioner of Police (2001) N2046, Medaing v Muling (2010) N4001).

6. The appellant argues that the primary judge erred by holding that it lacked standing and by regarding it as a ‘mere applicant’ for a State Lease. Mr Haiara, for the appellant, submitted that his Honour failed to appreciate that it was the only applicant, as the Minister had exempted the land from advertisement in its favour, and that it had a proprietary interest in the land and was entitled to have its application dealt...