OS No. 69 OF 2005; Valkyrie No. 5 Limited v Independent Consumer and Competition Commission and The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2008) N3485
• Date: 16 June 2008
• Year: 2008

Full Title: OS No. 69 OF 2005; Valkyrie No. 5 Limited v Independent Consumer and Competition Commission and The Independent State of Papua New Guinea

National Court: Paliau, AJ

Judgment Delivered: 16 June 2008

PRACTICE AND PROCEDURE – Leave to apply for Judicial Review – Ex parte application – Leave to intervene on precluded – National Court Rules, O16, r3.

ADMINISTRATIVE LAW – Judicial review of administrative acts – Practice and procedure – Ex parte application for leave to apply – Leave to intervene on precluded – National Court Rules, O16, r3 – State only not precluded to intervene – s8 of the Claims By and Against the State Act.

Cases cited:

Simon Manjin v Post and Telecommunication Corporation [1990] PNGLR 288; Ombudsman Commission v Donohoe [1985] PNGLR 348; Ila Geno v The Independent State of Papua New Guinea [1993] PNGLR 22; R v Mitchell, Ex parte Wafing [1973] PNGLR 461; Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR 537; Olasco Niugini Pty Ltd v John Kaputin [1986] PNGLR 244; Diro v Ombudsman Commission of PNG [1991] PNGLR 153; Amadio Pty Ltd v The State [1992] PNGLR 218; Ombudsman Commission of PNG v The Honourable Justice Sakora (Constituting the Leadership Tribunal) and Paul Pora (1996) N1720; The Right Honourable Sir Julius Chan v The Ombudsman Commission of PNG (1998) SC557; Garamut Enterprises Limited v Steamships Trading Company Ltd (1999) SC625; Frederick Martins Punangi v Sinai Brown (2004) N2661

1. PALIAU, AJ: This is an application by the First Respondent, the Independent Consumer and Competition Commission (ICCC) to intervene on an application for leave to apply for judicial review. I gave brief reasons for refusing the application on 16th June 2008. I now give my reasons in full.

2. The Applicant applied for a general carrier’s license under the Telecommunications Act. The ICCC refused the application. On the 17th February 2005, the Applicant sought declaratory orders and orders in the nature of certiorari and mandamus against ICCC. The Applicant also on the same date filed a notice of motion seeking leave to apply for judicial review of the decision of ICCC.

3. Application for leave to apply for judicial review was heard by the National Court and on the 24th June 2005 refused leave for judicial review. Leave was refused on the ground that the Applicant had not exhausted its statutory remedy of appeal to the Appeals Panel under s 182A of the Telecommunication Act.

4. The Applicant appealed against the decision and on the 8th June 2007 the Supreme Court upheld the appeal because there was no Appeals Panel in place in order for the Applicant to lodge its appeal to. The matter was remitted back to the National Court to determine the issue of leave.

5. The application for leave came before me for determination on the 10th June 2008. At the same time the First Respondent, ICCC sought leave to intervene or to oppose the Applicant’s application for leave for judicial review. I refused leave to intervene and gave brief reasons. I now give my reasons in full.

6. The question for determination is; may other parties be permitted to intervene or to oppose an application for leave to apply for judicial review? If the answer is no, does the Court have the discretion to allow interested or potentially interested parties to intervene?

National Court Rules

Order 16 Rule 3(2)

An application for leave to apply for Judicial Review must be made ex parte to the Court.

Order 16 Rule 3(3)

Applicant must give notice of application to the Secretary for Justice within 2 days before application is made and must at the same time lodge with the Secretary copies of the statement and every affidavit in support.

Claims By and Against the State Act, Section 8

Notwithstanding anything in any other law, a court hearing an application for leave to apply...