Lae Rental Homes Ltd v Viviso Seravo and The Independent State of Papua New Guinea (2003) N2483

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 27 October 2003
• Court: National Court
• Citation: (2003) N2483
• Docket Number: OS 202 of 1999
• Year: 2003
• Judgement Number: N2483

Full Title: OS 202 of 1999; Lae Rental Homes Ltd v Viviso Seravo and The Independent State of Papua New Guinea (2003) N2483

National Court: Kirriwom J

Judgment Delivered: 27 October 2003

N2483

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

OS. 202 OF 1999

Between:

LAE RENTAL HOMES LTD

(Plaintiff)

And:

VIVISO SERAVO

(First Defendant)

And:

THE INDEPENDENT STATE OF PNG

(Second Defendant)

LAE: KIRRIWOM, J

2003: 12TH SEPTEMBER & 27th OCTOBER

ADMINISTRATIVE LAW – Judicial Review – Jurisdiction - Delay – Factors contributing to delay in prosecution of review – Applicant not wholly responsible – Substantive issues outweigh delay factor – Need to balance interest between delay and dispensation of justice – Exercise of discretion.

ADMINISTRATIVE LAW – Judicial Review of administrative decisions – Rules of natural justice – Breach of – Right to be heard – Right to put case – Ministerial decision – Revocation of lease – No proper and legitimate grounds – No reasons – No explanation – No material relied upon in evidence – Land Act Ch. 45, ss.57, 58,59 & 60.

ADMINISTRATIVE LAW – Judicial Review – Appeal against Land Board decision – Forfeiture of lease – Rules of Natural Justice - Breach of - Right to be given notice – Right to be heard – Dismissal of appeal – Failure to give reasons – Failure to explain – Failure to defend – Land Act Ch. 45, ss.62-63, ss.122 - 124.

ADMINISTRATIVE LAW – Judicial Review – Grounds – Fraud – Errors of law – Breaches of – Land Act Ch. 45 – Gross violations of mandatory statutory requirements under the Act – Alienation of Government land and State Leases – Land Act Ch. 45, ss.64, 65, 68, 69, 71 and 74.

Papua New Guinea cases cited and or referred to:

1. Kekedo v Burns Philip (PNG) Ltd & Ors [1988-89] PNGLR 122

2. Pius Sankin v Papua New Guinea Electricity Commission [2002] Unreported National Court Judgment (19th July 2002) – N2257

3. Godfrey Niggints v Henry Tokam [1993] PNGLR 66

4. Benson Gegeyo & Ors v Minister for Lands and Physical Planning [1987] PNGLR 351

5. Application of the National Capital District Commission [1987] PNGLR 339

Overseas cases and materials referred to or cited:

1. General Electric Co Ltd v Price Commission [1975] ICR 1

2. Lawyers Practice Manual (NSW), Redfern Legal Centre, Lawbook Co. Ltd Vol. 2 pp.1305/6-7

Facts

Applicant for judicial review was a registered title holder of a commercial lease in a prime location in the city of Lae that was taken away from him through revocation and forfeiture procedures provided under the Land Act Ch.45 under the hand of a former Minister and A Delegate of the Minister which departmentally was admitted to be illegal and fraudulently executed and an appeal under section 62 of the Land Act to the First Defendant for the reversal of the decision of the Land Board failed, held:

(1) That the purported revocation of the Grant of Title to Lae Rental Homes Ltd in respect of the parcel of land known as section 65 allotment 1 volume 144 folio 6 Lae Morobe Province by the former Minister Sir Albert Kipalan KBE LLB MP on an unspecified date in April of 1996 was improper and is therefore null and void ab initio;

(2) That the subsequent forfeiture of the Plaintiff’s title to the same parcel of land by J. Painap A Delegate of the Minister for Land was done in breach of the provisions of the Land Act and is null and void ab initio;

(3) That the Land Board decision number 1999 made 14 May 1998 allocating the land in question namely section 65 allotment 1 volume 144 folio 6 Lae Morobe Province to Lae Bottling Industries Ltd was not made in accordance with the Land Act Ch.45 and is void for illegality;

(4) That the dismissal of the Plaintiff’s appeal against the Land Board’s decision number 1999 communicated to the Plaintiff on 24 March 1999 cannot be sustained and must be quashed as it was arrived at without good reasons and in the absence of transparency and principles of good governance;

(5) That the Defendants pay the Plaintiff’s costs on solicitor-client scale.

Full facts are in the judgment.

Counsel

M. Titus for the Plaintiff

No appearance for the Respondent

27th October 2003

KIRRIWOM, J:

6. This is an application for judicial review under O.16 of the National Court Rules. Leave pursuant to Rule 3 NCR was granted to the Plaintiff/Applicant on 2nd November 1999. The matter was then left in abeyance until it came before me on 12th September, 2003 after lapse of close to four years since leave was given.

7. Delay is an important factor in judicial review applications. It is not an issue in this trial. However on the facts of this case delay of four years after leave was given for this matter to now come before the court for trial on substantive issue is not an insignificant oversight or omission. It defeats the whole purpose for judicial review. The urgency of the matter necessitates commencement of the action by way of originating summons so that it is dealt with urgently, expeditiously and determined within the shortest time possible by avoiding the rigmaroles of lengthy pleadings associated with proceedings commenced by writ of summons. And the fact that the matter is undefended is not an excuse for the court to gloss over it without at least appraising itself of the reasons for the delay in the interest of justice. In my view there must be exceptionally good reasons for the court to entertain this application.

8. The law requires under O.16 r.5 (4) NCR that within twenty one days after leave has been obtained the Plaintiff must set the summons down for hearing. The matter was fixed for trial thereafter and trial date was set. But that hearing was aborted and thereafter the matter never got back on the list for all manner of reasons including heavy court list. The plaintiff explained the delay in the affidavit of Jim Ninjipa the Managing Director of Lae Rental Homes Ltd sworn 14th September, 2000 filed in support of its application to transfer this case to Mt Hagen in September 2000 in order to get a hearing. This built-up of frustration of the Plaintiff’s proprietor would have been about the time when there was only one resident judge in Lae. The Plaintiff explains in his affidavit paras 2 - 4:

“2. I also understand that the Solicitor General has an office in Mt Hagen, Western Highlands Province and it will be convenient for that office and cost-effective to hear this case in Mt Hagen.

3. I have been advised by my lawyers that it is not likely that there is going to be a second judge appointed in Lae and that most civil matters are still pending and are waiting to be heard. I also believe it is unlikely that the situation will improve until next year.

9. I seek that this matter be transferred to Mt Hagen National Court where there is a resident judge and I also understand that there is a resident judge in Goroka. I believe the work load may be lighter there than in Lae.” (Emphasis is mine)

4. The Plaintiff’s application was dismissed. And still the matter failed to get to a hearing. The Plaintiff explained in his evidence that he relied on his lawyer and constantly checked on him but was given the same message tape-recorded message ‘we can’t get a hearing date because the judge has very heavy schedule’. The monotony went almost forever and the Plaintiff’s hope of getting a hearing faded away. The lawyers subsequently discontinued acting for the Plaintiff.

10. The delay in the prosecution in this matter must be regretted. The year in which the Plaintiff sought to have the case transferred was the most opportune time for this trial to have been fast-tracked when the particular subject land was at the peak of much controversy in the city of Lae as published in the media (see Exhibit “P7”). Nothing happened thereafter for two years until the lawyers belatedly filed a Notice Ceasing To Act on 2nd December 2002....