Rabaul Shipping Ltd v Captain Nafizul Hossain

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 17 February 2017
• Citation: (2017) N6644
• Court: National Court
• Year: 2017
• Judgement Number: N6644

Full : OS NO. 490 OF 2012; Application for Judicial Review pursuant to Order 16 of the National Court Rules; Rabaul Shipping Limited v Captain Nafizul Hossain, Manager, Survey and Inspection and Chris Rupen, General Manager, National Maritime Safety Authority and National Maritime Safety Authority and the Independent State of Papua New Guinea (2017) N6644

National Court: Anis AJ

Judgment Delivered: 17 February 2017

N6644

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 490 OF 2012

APPLICATION FOR JUDICIAL REVIEW PURSUANT TO ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN:

RABAUL SHIPPING LIMITED

Applicant

AND:

CAPTAIN NAFIZUL HOSSAIN, Manager, Survey and Inspection

First Respondent

AND:

CHRIS RUPEN, General Manager, National Maritime Safety Authority

Second Respondent

AND:

NATIONAL MARITIME SAFETY AUTHORITY

Third Respondent

AND:

THE INDEPENDENT STATE OF PAPAU NEW GUINEA

Fourth Respondent

Kokopo: Anis AJ

2016: 12 July & 26 September

2017: 17 February

JUDICIAL REVIEW – review challenging interpretation of section 69 of the Merchant Shipping Act 1975 - applicant applied for survey of two (2) vessels - applicant re-directed and asked to engage private surveyors - imposition of new process for survey of vessels

PRACTICE & PROCEDURE – legal questions raised earlier raised again in the review - whether judicial review Court can interpret or substitute its decision or opinion over the decision being reviewed - role of judicial review Court discussed

Case cited:

Dominic Philip v. The National Education Board (2008) N4024

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

Jacob Yafai v. Dr. Philip Kereme (2016) SC1531

Jerry Magiri v. Papua New Guinea Forest Authority (2009) N3670

Martin Kehene v. Allan Jogioba (2008) N4025

Pombros Maliu v. Samuel K Geno (2013) N5144

Counsel:

Ms C Pulapula, for the Applicant

Mr T Potoura, for the 1st, 2nd and 3rd Respondents

Mr A Edo, for the 4th Respondent

JUDGMENT

17th February, 2017

1. ANIS AJ: This is a judicial review ruling. Leave to apply for judicial review was granted earlier by His Honour the then Acting Judge Justice Maliku on 14 September 2014. This Court heard the application for judicial review on 12 July 2016. Presentation of submissions was later heard on 26 September 2016. The Court reserved its ruling indefinitely until today.

DECISION FOR REVIEW

2. Let me begin by stating the decision the applicant is asking this Court to review. According to the Applicant's Statement, which was filed on 17 August 2016 under Order 16 Rule 3(2(a) of the National Court Rules (herein after referred to as the Statement), it reads:

(a) The decision of the Respondents made on the 11th July 2012 of its refusal to duly nominate a Ships Surveyor to conduct its Annual Survey for MV Madang Queen and Morobe Queen.

EVIDENCE

3. The parties filed a Review Book (herein after referred to as the RB) on 12 May 2016. The applicant called one witness Captain Peter Sharp. The witness gave evidence in chief and was cross-examined in Court. The respondents called one witness namely Captain Nafizul Hossain. He was also examined and cross-examined in Court. The parties formally tendered their affidavits. Let me set them out herein:

Exhibit	Description	Date & Date filed
P1	Affidavit of Elsie Takoboy, sworn and filed.	17/12/13
P2	Affidavit In Support, Elsie Takoboy, sworn and filed.	16/08/12 20/08/12
P3	Affidavit of Capt. Peter Robert Sharp, sworn and filed.	20/10/12 08/11/12
P4	Affidavit of Capt. Peter Robert Sharp, sworn and filed.	14/08/12 17/08/12
P5	Affidavit of Capt. Peter Robert Sharp, sworn and filed.	02/04/14 02/04/14
D1	Affidavit of Chris Rupen, sworn and filed.	27/11/12 22/02/13
D2	Affidavit of Capt. Nafizul Hossain, sworn and filed.	18/12/13 18/03/14
D3	Affidavit of Capt. Nafizul Hossain, sworn and filed.	11/12/13 13/12/13

GROUNDS OF REVIEW?

4. I will now address the grounds of review, as they of course will set the foundation of the applicant's arguments in this judicial review application. They are contained in the Statement at page 271 of the RB. They read as follows:

(i) The First Respondent after receiving an application in the required form on the...of July 2012 refused to duly nominate a Surveyor to conduct an annual survey of two of the motor vessels Madang Queen and Morobe Queen operated by the Applicant. Even though the Respondents were aware of the legal requirement to do so and such was pointed out to the Respondents they continue to refuse (to) follow the requirements of the Merchant Shipping Act. A further letter sent by the Applicant specifying the exact provision of the Merchant Shipping Act and question why if a Flag Station Inspection could be conducted then why couldn't an Annual Survey be conducted.

(ii) The Respondents were fully aware of their legal requirement to nominate a surveyor yet have failed to do so. The Applicant explained to the Respondents that the Merchant Shipping Act specifically states that the Authority has to nominate a surveyor who is gazetted, to cause the ship to be surveyed, instead the Respondents have directed the Applicant (to) nominate a surveyor from the list of Non-exclusive surveyors which is not provided for in the Merchant Shipping Act.

5. The immediate preliminary question that comes to my mind is this: Are these valid or sufficient judicial review grounds? Order 16 Rule 13 of the National Court Rules sets out, not an exhaustive, but a valid list of the types of grounds for judicial review: They are and I read:

· Ultra vires /lack of jurisdiction

· Breach of procedures prescribed by statute or sub-ordinate legislation designed to ensure procedural fairness in decision-making

· Acting under dictation

· Real or apprehended bias

· Bad faith

· Inflexible application of a government policy

· taking into account irrelevant considerations

· Extraneous (improper) purpose.

· Error of law on the face of the record

· Wednesbury principle of unreasonableness

6. The first thing I notice is that none of the grounds under Order 16 Rule 13 of the National Court Rules is pleaded in the applicant's two (2) grounds of review. And the more I inquire, I find errors in the two (2) so called grounds of review, which in my opinion are serious. Am I entitled to revisit the merits of the grounds of review? The answer is "yes". I refer to the principles held in the case of Dominic Philip v. The National Education Board (2008) N4024, which the Supreme Court in the case of Jacob Yafai v. Dr. Philip Kereme (2016) SC1531 has also recently endorsed. The decision of the National Court was by the Deputy Chief Justice Salamo Injia, as he then was. His Honour said and I read:

The relief sought and the grounds relied upon must be properly and sufficiently pleaded in the Statement filed under O16 r 3; they must relate to established and recognized grounds of review at law. The material or evidence relied on must relate to and be relevant to those grounds as expressly pleaded. At the hearing parties will not be permitted to advance grounds which clearly lack merit, or introduce new grounds which are not pleaded and produce evidence or material and raise issues and submissions which have no connection with the grounds pleaded. It is for this reason that at the hearing of the leave application and at the direction hearing upon grant of leave, the court should scrutinize and refine them and even weed out those relief and grounds which are not available in judicial review, or vague; or duplicitous, and clearly lack merit so that only those relief, grounds issues which arise from those grounds and relevant evidence which support those grounds are allowed to proceed to a hearing. A similar exercise should be carried out at the hearing of the substantive application in case some of those matters escape proper scrutiny at the leave or directions stage.

(Underlining is mine)

7. Having the said mandate, I will begin by addressing what I would term as the main problems with the applicant's two (2) grounds of review. Firstly, the two (2) grounds of review are drafted like statement of arguments or submissions. That is not, in my opinion, how an applicant should plead a ground of review in a Statement that is filed under Order 16 Rule 3(2)(a) of the National Court Rules. The applicant's pleading is contrary to law, practise and what the Court has held in the Dominic Philip case.

8. The second point I wish to make is this: The two (2) grounds of review relate to the merit of the matter. That is, the applicant had used the said arguments and submissions against the decision that is now the subject of this judicial review. In other words, the applicant wants this Court to review or find whether its earlier arguments it had raised against the respondents in relation to the interpretation of section 69 of the Merchant Shipping Act Chapter No. 242 (herein after referred to as the MSA), were correct. Is that the function of a judicial review Court, or can this Court make such a finding, I ask? And are these two (2) grounds of review recognised by law? I would answer "no" to both questions. There are ample case...