Agriculture Resources Technology Ltd v Ray-Paul

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 10 October 2017
• Citation: (2017) N6937
• Court: National Court
• Year: 2017
• Judgement Number: N6937

Full : OS (JR) No 655 of 2017; Agriculture Resources Technology Limited v Ray-Paul, Commissioner of Customs and Frank Babaga, Assistant Commissioner Operations and Papua New Guinea Customs and the Independent State of Papua New Guinea (2017) N6937

National Court: Anis AJ

Judgment Delivered: 10 October 2017

N6937

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 655 OF 2017

BETWEEN:

AGRICULTURE RESOURCES TECHNOLOGY LIMITED

Applicant

AND:

RAY-PAUL, COMMISSIONER OF CUSTOMS

First Respondent

AND:

FRANK BABAGA, ASSISTANT COMMISSIONER OPERATIONS

Second Respondent

AND:

PAPUA NEW GUINEA CUSTOMS

Third Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

Kokopo: Anis AJ

2017: 26 September & 10 October

JUDICIAL REVIEW – Application for leave to apply for judicial review - Order 16 Rule 3(2) of the National Court Rules - originating summons- common ground on sufficient interest - contests on undue delay, exhaustion of administrative remedy and arguable case - court's power discretionary - no valid grounds of review pleaded - pleaded grounds for review vague and frivolous - the two (2) grounds for review argued "natural justice" and "error of law" at hearing not pleaded in the Statement - the two (2) grounds for review raised at hearing contrary to prima facie evidence and pleading in the Statement

Cases cited:

Ex parte Application of Eric Gurupa (1990) N856

In the matter of the Ex-pare application of Poka Biki [1995] PNGLR 336

Paul Asakusa v. Andrew Kumbakor (2009) N3303

Stanley Billy v. Gari Baki (2011) N4509

Pombros Maliu v. Samuel K Geno (2013) N5144

Rabaul Shipping Ltd v. Captain Nafizul Hussain and Ors (2017) N6644

Mision Asiki v. Manasupe Zurenuoc (2005) SC797

Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479

Counsel:

Ms Marubu, for the Plaintiff

Ms E Takoboy, for the First, Second, Third & Fourth Respondents

RULING

10th October, 2017

1. ANIS AJ: I rule on the applicant's application for leave to apply for judicial review. The application was made on 26 September 2017, under an originating summons filed on 16 August 2017. The State appeared and objected to the application. I heard submissions from the parties on that day and reserved my ruling to a tentative date at 9:30am on 3 October 2017. The matter was called on that day. My decision was not ready by then so I adjourned the matter to a date to be advised. Parties have been advised that the decision is ready for deliberation today.

Decision for review

2. The decision the applicant intends to review is pleaded as the first relief in the originating summons. It reads:

Leave of the Court pursuant to Order 16 Rule 3 of the National Court Rules to apply for judicial review of the decision of the Assistant Commissioner of Operations of the Office of PNG Customs Services the second defendant in this proceedings made on the 10th of May 2017 to dispose of the Plaintiff’s containers as per the Customs Act 1951.

Relevant background

3. The applicant imported agricultural related materials or goods in thirty (30) containers, which arrived in December 2013. Fourteen (14) of the containers were cleared by the third respondent. The remaining sixteen (16) containers, containing bungalows or ready-made kit houses (imported goods), were not cleared because the applicant did not pay their import duty tax. Because of that, the imported goods were ceased by the third respondent on 6 October 2014. The applicant, through its then lawyers Peri Lawyers, challenged the seizure soon after by correspondence on 15 October 2014. The third respondent responded soon afterwards and advised the applicant that a security guarantee would be required for the release of the seizure goods. The applicant to date has not given the required security.

4. Prima facie evidence shows that the applicant had obtained support from various State agencies earlier in 2013 to exempt its imported goods from import duty. The exemption request was primarily based on an earlier National Executive Council (NEC) decision, number 88/2007. The NEC decision was made on 14 March 2007. It was widely known then as the Green Revolution Policy. The policy was said to have tax exemption provisions for imported agricultural goods or materials. The policy, however, was never sanctioned or passed as a law as intended.

5. The applicant's various attempts to seek support from the State entities and in the recent times to seek the NEC's endorsement for specific exemption for its imported goods, did not succeed. Prima facie evidence shows that that process, which is, waiting for the NEC to make a decision to exempt the applicant's imported goods from tax duty, may still be pending.

6. The applicant came to this Court after it had received an email correspondence dated 10 May 2017 from the third respondent. In the email, the third respondent advised the applicant that it was auctioning the seized imported goods. That is the decision which the applicant now seeks leave of the Court to review.

Issues

7. The issues are as follows:

(i) Whether the application was commenced within reasonable time?

(ii) Whether the applicant has an arguable case for judicial review; and

(iii) Whether the applicant has exhausted all other administrative remedies.

8. I note that the State did not challenge the question of whether the applicant has sufficient interest. The State has conceded in its submission that the applicant has sufficient interest. For the record, I find that the applicant indeed has a sufficient interest in the matter. The third respondent plans to tender by public auction the seized imported goods, which were imported by the applicant. The applicant is unhappy with the decision and now intends to challenge it.

When was the decision made?

9. The State, in my view, makes an interesting but valid argument under this sub-heading. Counsel submits that the decision to publicly auction the imported goods was not made on 10 May 2017 as claimed by the applicant, but rather much earlier in 2016. Counsel referred to a letter dated 5 September 2016 by the third respondent to the Secretary for the Department of Trade, Commerce & Industry. The letter is in evidence and reads in part as follows:

Request release of detained containers based on Guarantee for facilitating an NEC Submission for Import Duties Exemption for Agriculture Resource Technology (ART) Project.

I refer to your letter dated 16 May 2016 relating to the above mentioned. My sincere apologies for the prolonged delay in responding to your letter.

The situation with this import is that, there was and still is no legal basis for PNG Customs Service to waive the import taxes applicable.

The goods were imported in December 2013 and the assessed duties and taxes were not paid which deemed the goods abandoned and such were seized by Customs on 6th October 2014. ART through its lawyers Peri Lawyers disputed the seizure, laying claim on the seized goods in a letter dated 15 October 214.

PNG Customs Service responded by informing the importers that a monetary security guarantee is required for the release of the seized containers. No action from the importers was received to date. The goods have been seized by Customs and are now forfeited to the state and will be disposed of by Customs to settle all cost incurred while the goods have been in storage.

As stated earlier PNG Customs Service has no legal basis to waiver and duties and taxes applicable on imported containers and will be taking action to dispose of the goods to recover the revenue lost and the settlement of any cost incurred whilst the goods were in our custody. The goods will be disposed of by tender and PNG Customs may consider the tender bid importer.

Should you have any queries, .....

10. I note that the decision being challenged by the applicant, as pleaded in the originating summons, was said to have been made on or about 10 May 2017. It is evident in the email dated 10 May 2017, which I have referred to above in my judgment. The email is in evidence and was sent by the third respondent's employee Frank Babaga to the applicant's agent Geoffrey Stephenson. It reads in part as follows:

Thank you for your email. I note the attached letter to the Chief Commissioners from the NEC Secretary dated 30 October 2014. To date we have had no response from NEC or Treasury and after more than two years with no instruments to legally waiver any taxes applicable on the consignment. PNGCS is exercising its powers under the Customs Act to dispose of the goods. The disposal of the goods as per the Customs Act will proceed as planned by our Islands Regional Office.

11. In my view, to determine the question under this sub-heading, I must briefly consider sections 126, 127 and 127A(1) of the Customs Act Chapter No. 101 (Customs Act). I set them out in part herein:

126. Notice of seizure.

(1) Where a conveyance or goods have been seized as forfeited, the seizing officer shall give written notice of the seizure, and the cause of it, to the owner of the conveyance or goods, or if the owner cannot be identified after reasonable inquiry, on the person who was in possession or who was in control of the conveyance or goods...