NTN Pty Limited v The Board of the Post and Telecommunication Corporation, Post and Telecommunication Corporation and Media Niugini Pty Limited[1987] PNGLR 70

• Jurisdiction: Papua New Guinea
• Judge: Wilson J
• Judgment Date: 06 May 1987
• Court: National Court
• Citation: [1987] PNGLR 70
• Year: 1987
• Judgement Number: N587

Full Title: NTN Pty Limited v The Board of the Post and Telecommunication Corporation, Post and Telecommunication Corporation and Media Niugini Pty Limited[1987] PNGLR 70

National Court: Wilson J

Judgment Delivered: 6 May 1987

1 Judicial review—National Court Rules O16 r3—exercise of discretion—application to show sufficient interest and arguable case

2 Judicial review—exercise of discretion—need to consider Constitution s60

3 Judicial review—delay in applying for relief—National Court Rules O16 r4—exercise of discretion—applicant involved in challenging a decision which has implications for another party or for public administration is under a heavy duty to act expeditiously and fairly

APPEAL—Judicial review—Application for—Discretion—Grounds for exercise of—Where application out of time—National Court Rules, O16, r3, r4—Constitution, s60.

ADMINISTRATIVE LAW—Judicial review—Application for—Discretion—Grounds for exercise of—Where application out of time—National Court Rules, O16, r3, r4—Constitution, s60.

ADMINISTRATIVE LAW—Judicial review—Denial of natural justice—Administrative proceedings—Need to have regard to Constitution, s60.

Held:

(1) Leave to proceed by way of judicial review, pursuant to the National Court Rules, O16, r2, may be granted where the court is satisfied under O16, r3(5), that the applicant has sufficient interest or standing to bring the application.

Matters relevant to the exercise of that discretion include:

(a) Whether there is an arguable case: Inland Revenue Commissioners v National Federation of Self–Employed and Small Businesses Ltd [1982] AC 617.

(b) Where the application is made out of time, whether, under O16, r4, there has been undue delay in making the application and whether the granting of leave would be likely to cause substantial hardship to, or substantially prejudice the rights of any person, or would be detrimental to good administration.

In the interests of good administration an applicant who wishes to challenge a decision which has implications for another party or for public administration is under a heavy duty to act expeditiously and fairly.

(2) In considering whether there is an arguable case based on a denial of natural justice in administrative proceedings, regard should be had to s60 of the Constitution, which directs attention to the development of a system of principles of natural justice and of administrative law.

(3) Leave should be refused in circumstances where leave to make the application for judicial review was in respect of a decision to grant broadcasting station licences under the Radiocommunications Act (Ch152), by a broadcasting licence holder who had no statutory rights to be heard in respect of the granting of new licences and who was making the application 11 months out of time.

Cases Cited

The following cases are cited in the judgment:

Inland Revenue Commissioners v National Federation of Self–Employed and Small Businesses Ltd [1982] AC 617; [1981] 2 WLR 722; [1981] 2 All ER 93.

R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299; [1972] 2 WLR 1262.

Summons

This was an application for leave to apply for judicial review made pursuant to the National Court Rules, O16, r4.

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Wilson J: This is an application for leave to proceed by way of judicial review under O16, r2 of the National Court Rules.

The review application concerns a licence to broadcast television which was issued on 19 November 1985 to Media Niugini Pty Ltd.

ABBREVIATIONS

In this judgment I will refer to the plaintiff, NTN Pty Ltd, as "NTN"; the first and second defendants will be referred to as "PTC" unless it is necessary to refer separately to the first defendant which will be referred to as "the Board of PTC"; the third defendant will be referred to as "Media Niugini".

CHRONOLOGY OF PROCEEDINGS

1. The application before me on 16 April was an ex parte application with only the legal representatives of NTN in court.

2. On 22 April 1987 when the matter resumed for me to deliver judgment Mr Hirst, counsel for Media Niugini, successfully sought leave to appear to present submissions on behalf of his client regarding the element of delay in applying for relief which was a matter going to the exercise of my discretion as to whether leave should be granted to NTN. The application for leave was contested by Mr Glenn on behalf of NTN. After giving the matter consideration I gave a ruling in the following terms:

"I have before me an application by Media Niugini (MNG) for leave to appear and make representations in relation to an application for leave for judicial Review by NTN Pty Ltd (NTN). That application revolves around matters covered by O16, r4 which deals with the situation where the court's discretion is being exercised where there is delay.

I take the view that this provision is in the Rules to give some protection to the rights of parties affected as in this case MNG clearly will be. During the initial hearing I indicated my concern that I was unable to come to any view on what I termed the 'second leg' of O16, r4, because I had nothing before me on which to base my decision as to the discretion given.

The application now before me would enable such information to be to hand. I have no doubt that MNG has sufficient interest to seek leave and I consider it would be fair to allow such a course.

I have considered R v Stratford–on–Avon District Council; Ex parte Jackson [1985] 3 All ER 769, relied on by Mr Glenn for NTN, and I consider it to be distinguishable from the present circumstances particularly as it seems to be protecting the rights of individuals to seek the court's assistance where there are matters of public interest and where the delay has been caused by the incompetence or inadvertence of legal services provided through a legal aid scheme. The applicants in this case are not acting under such a handicap nor have they been in the past. I consider the issue before me is severable from the issue in that case as well as the fact that the provisions of statute and rules referred to are different to those which apply in this jurisdiction.

The applicant, MNG, should be given leave for the purpose of presenting its case in relation to those matters requiring this Court's attention made under O16, r4, and I so order."

3. On 29 April 1987 the case resumed after further affidavit evidence had been filed by Media Niugini and by NTN in reply.

Mr Steele, counsel appearing on behalf of PTC, sought leave to make submissions on behalf of his client and such leave was granted over the formal objection of NTN.

Mr G Thorley the Chief Executive Officer of Media Niugini was also examined on his two affidavits.

Submissions were then heard relating to the issue of delay.

APPLICATION FOR LEAVE (EXCLUDING THE ISSUE OF DELAY)

The originating summons filed by NTN sought leave to make an application for judicial review of the decision of the Board of PTC to grant broadcasting station licences to Media Niugini pursuant to the Radiocommunications Act (Ch152), s6, and for orders...