The State v Jack Moge

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 13 March 1995
• Citation: [1995] PNGLR 246
• Court: National Court
• Year: 1995
• Judgement Number: N1318

National Court: Jalina J

Judgment Delivered: 13 March 1995

N1318

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPLICATION OF MOGE ENGA AND KUIPI GROUP IN THE MATTER OF A DECISION OF THE MINISTER FOR LANDS CONCERNING SECTION 30 ALLOTMENT 7 MOUNT HAGEN

Mount Hagen

Woods j

6 March 1995

8 March 1995

ADMINISTRATIVE LAW — Judicial review — Minister's discretion under Land Act — Appeals under Land Act — Minister must consider judicially — Discretion may not be exercised arbitrarily — Duty to give reasons.

Facts

The Land Board, after considering a number of applications for a State lease of land, recommended to the Minister that it should be granted to the applicant. A number of unsuccessful persons who also applied for the land exercised their right of appeal against the Land Board's decision, and the Minister referred the matter back to the Land Board for a rehearing. No reasons were given for this referral, and the applicant sought a review of the Minister's action, which he argued was unreasonable and unfair.

Held

1. The person who considers an appeal must act judicially, not arbitrarily; i.e. he must, inter alia, indicate to the parties why he acted the way he has, and must not act secretly.

2. The granting of a State lease is not the sole prerogative of the Minister. Whilst he is the functionary who can reconsider the recommendation of the Land Board if there are real suggestions of maladministration, he cannot interfere if all has been done properly.

3. The Minister has acted unreasonably and outside the boundary of his discretion in rejecting the recommendation of the Land Board without giving reasons.

4. The Minister's decision is, therefore, harsh and oppressive, and his discretion has not been exercised according to principles of natural justice and fairness

Cases Cited

Papua New Guinea cases cited

Application of the NCDIC [1987] PNGLR 339.

Gegeyo v Minister for Lands [1987] PNGLR 331.

Other cases cited

Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935; [1985] AC 374; [1984] 3 WLR 1174.

Counsel

P Peraki, for the applicant

H Polume, for the Minister for Lands and the Land Board.

W Duwa, for Kala Autoport.

S Norum, for Ponpond Business Group.

P Kunai, for Rowason Development.

8 March 1995

WOODS J: This is an application seeking a review of the decision of the Minister for Lands in rejecting a recommendation by the Land Board for the grant of a State lease over land at section 30 allotment 7, Mount Hagen, to the applicant and seeking a declaration that the decision of the Minister is harsh and oppressive.

The other business groups appearing on this application are other parties to the original application before the Land Board.

In 1992, the subject land described as section 30 allotment 7 was advertised by the Lands Department as being available for tender by the usual Land Board procedures under the Land Act Ch 185. A number of persons or organisations, including the applicant, submitted tenders for a State lease over the land.

In July 1993, the Land Board sat in Mount Hagen to consider the applications for this land. In August 1993, the Land Board endorsed a recommendation to the Minister in accordance with the Land Act that the State lease over the subject land be granted to the applicant. The applicant was advised that it was the successful applicant before the Land Board. Before the Minister could act on this recommendation, a number of losing applicants lodged appeals to the Minister in accordance with the provisions of s 11 of the Land Act as persons aggrieved. The appeals were lodged by way of letter to the Minister. The appeals made reference to allegations of partisanship by the Land Board, or reference to the averaging out of successful applicants to land, or claims to be the traditional owners of the land, claims to a prior promise made by the Department of Lands to one of the appellants, and allegations over the illegal advising of the applicant before the Minister had properly considered the matter. Following the lodgin of these appeals, the Secretary for Lands wrote a brief to the Minister, merely summarising the main allegations and recommending that the Minister uphold the appeals and send the matter back to the Land Board. This brief is titled Policy Submission Paper No 6/93 (Highlands Region) and is dated 1 December 1993.

The applicant is submitting that the Minister has erred in the exercise of his discretion under the Act, has acted unreasonably and unfairly, and has given no reasons for his action in upholding the appeals. The applicant states that he had acted properly under the Land Act, whereas other applicants had been declared to be informal because of defects in their applications, that it was fair and proper hearing by the Land Board, and that the Minister acted unconscionably in upholding the appeal...