Ila Geno, Paul Lawton and Florien Mambu v The Independent State of Papua New Guinea [1993] PNGLR 22

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Woods J, Jalina J
• Judgment Date: 29 July 1993
• Court: Supreme Court
• Citation: [1993] PNGLR 22
• Year: 1993
• Judgement Number: SC447

Supreme Court: Kapi DCJ, Woods and Jalina JJ

Judgment Delivered: 29 July 1993

SC447

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCM 3 of 1993

BETWEEN:

ILA GENO, PAUL LAWTON

AND PLORIEN MAMBU

Appellants

AND:

THE INDEPENDENT STATE

OF PAPUA NEW GUINEA

Respondent

Waigani : Kapi DCJ, Woods J, Jalina J

27th & 29th July 1993

Appeal — Judicial review — Application for leave — Discretion — National Court

Rules, O 16, r 3.

Held: 1. Matters relevant to exercise of discretion

on application for leave for judicial review include the

question of whether there is arguable case. NTN Pty Ltd

v. The Board of Post and Telecommunication

Corporation [1987] PNGLR 70 applied.

2. Where the basis of application for leave for judicial

review is conceded, leave should be granted.

3. Substantive issues raised are matters properly to

be considered at the substantive hearing. Ombudsman

Commission v. Donohoe [1985] PNGLR 348 applied.

C. Hudson with E. Andrew for Appellants

P. Ame for the Respondent

29th July 1993

By the Court. The appellants are members of the Public Services Commission which is established under s. 190 of the Constitution. Apart from other duties and functions, the Commission is entitled to be consulted on appointments of Heads of Departments under s. 193(3) of the Constitution.

The Head of State acting in accordance with the advice of the National Executive Council appointed the following persons:

(a) Mr Bill Kua as Acting Secretary of Department of Youth, Home Affairs and Religion on the 15 th October 1992;

(b) Mr Joseph Gabut as Secretary of Department of Fisheries & Marine Resources on 23rd December 1992;

(c) Mr Zurenuouc as Acting Secretary of Department of Transport on 23rd December 1992.

The appellants purported to challenge these appointments as invalid and of no effect by way of judicial review under O. 16 of the National Court Rules on the basis that the Commission was not consulted in accordance with s. 193(3) of the Constitution.

No application for judicial review may be made without first seeking leave of the Court. The appellants made application for leave of Court in accordance with O. 16 r. 3 of the Rules. This matter came up for hearing before Mr Justice Amet and he refused leave for judicial review. The appellants have appealed against this decision.

The principles applicable to an application for leave are now well settled. In NTN Pty Ltd -v- The Board of Post and Telecommunications Corporation [1987] PNGLR 70 at 74 Wilson J said:

"Applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest (O 16, r 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, r 3(1).

In exercising it's discretion the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners -v- National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, Lord Diplock set out the principles upon which the Court should act and I respectfully adopt them. Lord Diplock said (at 644):

'If, on a quick perusal of the material then available, the court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.'"

See also Simon Manjin -v- Post and Telecommuncation Corporation and Others [1990] PNGLR 288 at 289-290.

The purpose for seeking leave is well explained by Lord Diplock in R -v- Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] 2 WLR 722 at 739:

"It's purpose is to prevent the time of the court being

wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived."

Lord Scarman said at 749:

"The curb represented by the need for an applicant to show, when he seeks leave to apply, that he has such a case is an essential protection against abuse of legal process. It enables the court to prevent abuse by busybodies, cranks, and other mischief-makers."

These passages were approved in Olasco Niugini Pty Ltd and Offshore Liquefaction Co Ltd -v- John Kaputin and William Searson, Francis Rowbottom, Charles Yates,...