John Wanis Wek v Sobol Trading Limited and Romilly Kila Pat, Secretary, Department of Lands & Physical Planning and Hon Benny Allan, Minister for Lands & Physical Planning and Registrar of Titles and the Independent State of Papua New Guinea (2016) SC1535

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J, Cannings & Neill JJ
• Judgment Date: 14 September 2016
• Court: Supreme Court
• Citation: (2016) SC1535
• Docket Number: SCM No 25 of 2015
• Year: 2016
• Judgement Number: SC1535

Full Title: SCM No 25 of 2015; John Wanis Wek v Sobol Trading Limited and Romilly Kila Pat, Secretary, Department of Lands & Physical Planning and Hon Benny Allan, Minister for Lands & Physical Planning and Registrar of Titles and the Independent State of Papua New Guinea (2016) SC1535

Supreme Court: Kirriwom J, Cannings & Neill JJ

Judgment Delivered: 14 September 2016

SC1535

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM No. 25 OF 2015

BETWEEN

JOHN WANIS WEK

Appellant

AND

SOBOL TRADING LIMITED

First Respondent

AND

ROMILLY KILA PAT, SECRETARY,

DEPARTMENT OF LANDS & PHYSICAL PLANNING

Second Respondent

AND

HON BENNY ALLAN, MINISTER FOR LANDS & PHYSICAL PLANNING

Third Respondent

AND

REGISTRAR OF TITLES

Fourth Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Respondent

Waigani: Kirriwom J, Cannings & Neill JJ.

2016:1st & 14th September

JUDICIAL REVIEW – leave requirements – whether applicant had a sufficient interest in the subject of the application for leave – whether applicant raised an arguable case for judicial review.

The appellant and the first respondent were unsuccessful applicants for an Urban Development Lease, which had been advertised for tender. Both forwarded a notice of appeal to the Minister against the decision of the Land Board to recommend that the lease be granted to another person. The first respondent’s appeal was upheld, while the appellant’s appeal was dismissed, the result being decisions of the Secretary for Lands & Physical Planning and the Minister for Lands & Physical Planning to facilitate granting of the lease to the first respondent. The appellant applied to the National Court for leave to seek judicial review of the decisions of the Land Board, the Secretary and the Minister to facilitate granting the lease to the first respondent. The National Court refused leave for two reasons: (a) the appellant did not have a sufficient interest in the subject matter of the decisions he sought leave to review, as he was a mere applicant for the lease and such actual interest that he did have was rendered nugatory by his conduct: he did not come to the court with clean hands as he had illegally entered the land that was the subject of the proceedings and built a permanent dwelling on it and was therefore a trespasser; (b) failure to show an arguable case that the Land Board, the Secretary or the Minister had exceeded their power or made any error of law in their decision-making. The appellant appealed against the refusal of leave on two material grounds. It was argued that the primary Judge erred in law, by: (1) finding that the appellant did not have a sufficient interest in the subject of the decisions he wanted reviewed; and (2) finding that there was no arguable case for judicial review.

Held:

(1) The appellant had a sufficient interest in the matter arising from his being an applicant for the lease, an appellant against the decision of the Land Board and the steps he had taken through normal administrative procedures to show his interest in the land. The primary judge unfairly labelled him as a trespasser. Ground (1) of the appeal was upheld.

(2) The primary judge did not appreciate the primary ground of judicial review that the appellant sought to argue, viz that the decisions to facilitate granting the lease to the first respondent were affected by error of law due to the fact that when it made its application to the Land Board for the lease, the first respondent was a non-existent legal entity, as it was not incorporated until eight months after the closing date for applications. The primary Judge failed to adequately consider whether there was an arguable case. Ground (2) of the appeal was upheld.

(3) As both grounds of appeal were upheld, the appeal was allowed and the decision of the National Court was quashed. The Supreme Court substituted, for the decision of the National Court, its decision, granting leave to the appellant to review the decisions of the Land Board, the Secretary and the Minister to facilitate granting the lease to the first respondent. Costs of the appeal were awarded to the appellant.

Cases cited:

The following cases are cited in the judgment:

Kapiura Trading Ltd v Bullen (2012) N4903

Leto Darius v Commissioner of Police (2001) N2046

Louis Medaing v Minister for Lands and Physical Planning (2010) N3917

NTN Pty Ltd v PTC [1987] PNGLR 70

APPEAL

This was an appeal against a decision of the National Court, refusing an application by the appellant for leave to seek judicial review of decisions relating to the granting of an Urban Development Lease to the first respondent.

Counsel:

J J Lome,for the Appellant

I Mugugia & E Manihambu, for the Second, Third, Fourth & Fifth Respondents

14th September, 2016

1. BY THE COURT: John Wanis Wek, the appellant, appeals against the decision of the National Court to refuse his application for leave to seek judicial review of administrative decisions made under the Land Act regarding an Urban Development Lease over land in the National Capital District.

BACKGROUND

2. The land, formally described as Portion 2888, Milinch Granville, Four mile Moresby, is at Tokarara. An Urban Development Lease over the land was, in 2012, advertised for tender and the appellant, amongst others, made an application for the lease, to the Land Board.

3. The Land Board, in 2014, rejected the appellant’s application, amongst a number of others. It recommended that the lease be granted to a company called Blue Energy (PNG) Ltd (which is not a party to this appeal). The appellant and another unsuccessful applicant, Sobol Trading Ltd (the first respondent), being aggrieved, appealed against the decision, under Section 62 of the Land Act, by forwarding notices of appeal to the Minister for Lands and Physical Planning (the second respondent). Such appeals are determined by the Head of State, ie the Governor-General, acting on the advice of the National Executive Council.

4. On 19 May 2015, the Secretary of the Department of Lands and Physical Planning (the second respondent), acting as a delegate of the Minister, published a notice in the National Gazette No G330 of 2015, notifying that the appeals against the Land Board’s recommendation in favour of Blue Energy (PNG) Ltd had been determined: Sobol Trading Ltd’s appeal was upheld and the appellant’s appeal was dismissed.

5. On 29 May 2015 the appellant filed in the National Court, by originating summons, an application for leave to seek judicial review of the decisions of the Land Board, the Secretary and the Minister to facilitate granting the lease to the first respondent. The primary proposed ground of review, set out in the appellant’s supporting statement under Order 16, Rule 3(2)(a) of the National Court Rules, was that all decisions to facilitate granting the lease to the first respondent were affected by error of law due to the fact that, when it made its application for the lease to the Land Board, the first respondent was a non-existent legal entity. It was not incorporated until eight months after the closing date for applications.

6. On 21 July 2015 the National Court, constituted by Justice Gavara-Nanu, heard the application for leave. On 22 July 2015 his Honour delivered an oral judgment, refusing leave, for two reasons:

(a) the appellant did not have a sufficient interest in the subject matter of the decisions he sought leave to review,

(b) failure to show an arguable case that the Land Board, the Secretary or the Minister had exceeded their power or made any error of law in their decision-making.

THIS APPEAL

7. The appellant filed an appeal against the refusal of leave for judicial review. That is the matter we are now determining. There are two material grounds of appeal. It is argued that the primary Judge erred in law, by:

(1) finding that the appellant did not have a sufficient interest in the subject of the decisions he wanted reviewed; and

(2) finding that there was no arguable case for judicial review.

8. The appellant seeks an order quashing the decision of the National Court and granting him leave to apply for judicial review.

9. We now address the two grounds of appeal.

1 ERROR OF LAW BY FINDING THAT THE APPELLANT DID NOT HAVE A SUFFICIENT INTEREST

10. One of the prerequisites for a person being granted leave for judicial review is that he has a sufficient interest in the subject matter of the decision he wants reviewed. This requirement arises under Order 16, Rule 3(5) of the National Court Rules, which states:

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

11. In this case, the primary Judge dealt with the question of whether the appellant had a sufficient interest in this way:

The applicant [the appellant] has argued that [he] has a special interest in the land because [he] had already done development on the property. There is clear evidence that the applicant has already put up a permanent house without having the title to the property. The applicant appears...