DADS Investment Corporation Limited formerly known as Eric Trading Pty Ltd v Benjamin Samson As Registrar of Titles and Others

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi DCJ,Murray,Kangwia JJ
• Judgment Date: 25 October 2023
• Neutral Citation: SC2485
• Citation: SC2485, 2023-10-25
• Counsel: A. Asigau & L. David, for the Appellant,No Appearance for the First, Second & Third Respondents,M. Muga, for the Fourth Respondent
• Docket Number: SCM 48 OF 2021
• Hearing Date: 25 August 2022,25 October 2023
• Court: Supreme Court

SC2485

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM 48 OF 2021

Between:

DADS Investment Corporation Limited formerly known as Eric Trading Pty Ltd

Appellant

v.

Benjamin Samson As Registrar of Titles

First Respondent

and

Justine Tkatchenko As Minister for Lands and Physical Planning

Second Respondent

and

The Independent State of Papua New Guinea

Third Respondent

and

Jamie Maxstone Graham

Fourth Respondent

Waigani: Kandakasi DCJ, Murray & Kangwia JJ

2022: 25^th August

2023: 25^th October

APPEALS — Appeal against interlocutory judgement refusing an application for leave to further amend Order 16, r. 3 (2) (a) statements — Exercise of discretion — Whether Primary Judge erroneously exercised his discretion — Application seeking to introduce new material after grant of leave for review — Appellant required to demonstrate error in the exercise of discretion by Primary Judge — No identifiable error demonstrated — Appeal dismissed.

JUDICIAL REVIEW — Special process — Exclusively provided for by Order 16 of the National Court Rules — Issues arising in judicial review proceedings must be dealt with under Order 16 and not other provisions of the National Court Rules

PRACTICE & PROCEDURE — Judicial review application — Application for amendment of Order 16, r.3 (2) (a) statement — Applicant for leave to amend — Applicable criteria — Conventional criteria for amendments of pleadings appropriate modifications applicable — Application prior to grant of leave can be readily granted — Applications after grant of leave should not be readily granted unless application concerns and is confined to matters pleaded and formed the basis for grant of leave for judicial review — Venturing outside of that could amount to an abuse of process.

PRACTICE & PROCEDURE — Appeal — Appellant sought to rely on conventional criteria for amendments arguing primary Judge failed to apply the criteria — Whether primary Judge was required to apply all the principles in the conventional criteria — No authority requiring all the principles in the conventional criteria to be satisfied to secure an amendment — Whether issues not raised in the Court below can be raised on appeal — Settled law that unless parties has raised an issue in the Court below, they are precluded from raising it on appeal.

Cases Cited:

Peter Makeng v. Timbers (PNG) Limited & Ors (2008) N3117.

Alex Timothy v. Hon Francis Marus (2014) SC1403.

Mek Kuk v. Peter O'Neill (2014) SC1331.

Peter O'Neill v. Nerrie Eliakim (2016) SC1539.

Church of Jesus Christ of Latter-Day Saints Inc v. Kimas & Ors (2022) SC2280.

Barrick (Niugini) LTD v. Nekitel (2020) SC 2007.

Papua Club Inc v. Nusaum Holdings Ltd (2002) N2273.

Steven Mabata Viri v. Fu TSAI WU (2017) N7006.

Nobetau v. Bougainville Executive Council (2020) N2020.

The Government of Papua New Guinea v. Barker [1977] PNGLR 386.

Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd [1995] SC488.

Fly River Provincial Government v. Pioneer Health Services Ltd (3003) SC 705.

Kekedo v. Burns Philp [1988–89] PNGLR 122.

Bokele v. Police Commissioner (2001) N2105.

Review Pursuant to Constitution Section 155(2)(b); Application by Lawrence Bokele (2002) SC682.

Pere v. Ningi (2003) SC711.

H.R. Holdings Ltd v. Taka (2023) SC2411.

Counsel:

A. Asigau & L. David, for the Appellant

No Appearance for the First, Second & Third Respondents

M. Muga, for the Fourth Respondent

Pacific Legal Group: Lawyers for the Appellant

Solicitor General: Lawyers for the First, Second, & Third Respondents

Simpsons Lawyers: Lawyers for the Fourth Respondent

25^th October 2023

1. BY THE COURT: The Appellant is appealing against the entire decision of the National Court which refused an application for leave to further amend its statement filed pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules (Order 16 (3) (Order 16 Statement). The application to amend was made after grant of leave for judicial review. On 31 August 2021, the appellant was granted leave to appeal. We heard and reserved on the substantive appeal.

Background

2. On 24^th March 1993, the appellant became the registered proprietor of a piece of land described as Allotment 9, Section 33, Granville: Port Moresby, NCD contained in State lease Volume: 1 Folio: 206 (the property). Then, sometime in November of 2010, the title to the property was fraudulently transferred to another person, namely, Yu Qing Liang. The Appellant took the matter to Court, through OS 866 of 2010 and the Court restored him as the owner. Despite those orders, the records kept by the first 3 Respondents were not rectified.

3. On 26 October 2017, after becoming aware that, the 4^th Respondent was issued a title to the property, the Appellant took the matter back to the National Court, by OS 837 of 2017. That proceeding was however, discontinued on 19 March 2018, after the Appellant became aware that, the first 3 Respondents had on 5 October 2011 forfeited its lease and on 5 May 2017, they granted a new lease over the property to the 4^th Respondent.

4. Aggrieved by the forfeiture and the grant of lease to the 4^th Respondent, the Appellant on 21^st June 2018, commenced judicial review proceedings against the first 3 Respondents' decisions to forfeit and grant the new lease over the property. On 20 September 2018, the Appellant was granted leave to amend its Order 16 Statement (first amendment). Leave for Judicial Review was also granted on the same date.

5. About 2 weeks later, on 3^rd October 2018, the Appellant filed a Further Amended Order 16 Statement (second amendment). It is not clear as to how the second amendment came about as there is no evidence of any application and or order leading to that.

6. On 31 March 2021, the Appellant filed a notice of motion seeking leave to further amend its Order 16 Statement, purporting to clarify the grounds for the review already set out and to include further grounds for review. The application was refused. The decision refusing that application is the subject of this appeal.

Relevant Law

7. The law on process and procedure for judicial review proceedings is now clearly established law. Judicial review is a special process. As such, it is exclusively provided for by Order 16 of the National Court Rules 1989. Hence, any application for judicial review and any issue as to its competence, summary dismissal and any other issue needs to be taken in accordance with the process and procedure provided for thereunder. This means the other provisions in the National Court Rules do not apply to judicial review proceedings.

8. The decision in Peter Makeng v. Timbers (PNG) Limited & Ors (2008) N3117, per Injia DCJ (as he then was) clarified the correct position at law. Relevantly, the then learned Deputy Chief Justice said:

“16. Judicial review is a special procedure developed by the Courts to deal with complaints by persons aggrieved by decisions made by public administrative bodies and persons exercising public power conferred by statute. It is discretionary. Ordinarily, it is not the Court's function to intervene in the administrative functioning of statutory authorities except in cases where the statutory authority has committed a legal error. Judicial review is restrictive, and this is achieved in several ways:

1. by prescribing comprehensive and exhaustive rules of practice and procedure, which inter alia, confers jurisdiction to review administrative acts in strict and mandatory terms;

2. by restricting the grounds in which judicial review procedure is available: see Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122;

3. by prescribing special types of relief in the nature of prerogative orders which are available in judicial review;

4. exercising the discretion under the rules is restrictive.”

9. This statement of the law has been endorsed by the Supreme Court. One such decision is the decision in Alex Timothy v. Hon Francis Marus (2014) SC1403, per Injia CJ, Davani & Gabi JJ. In so doing the Court said:

“18. These peculiarities and processes, common only to Judicial Review proceedings, were discussed at length in Peter Makeng v. Timbers (PNG) Limited and others (2008) N3117.

19. In the event, an interlocutory application to dismiss the Order 16 Originating Summons is filed and made before leave for review is granted, then such an application is permissible but must be brought within the provisions allowing such applications, found only in Order 16 and not elsewhere in the National Court Rules. Likewise, an application to dismiss a substantive application for judicial review must be brought within the provisions allowing such applications, found in Order 16 and not elsewhere in the National Court Rules.

20. This Court and the National Court have over the years, as is reflected in the decisions referred to above, emphasised the special and peculiar role played by the Judicial Review procedure. This process is exclusive which is why Order 16 guides the way Judicial Review proceedings are conducted.”

10. By the decision in Alex Timothy v. Hon Francis Marus (supra) this Court also took the opportunity to correct departures from this well settled legal position as represented by the decision of this Court in Mek Kuk v. Peter O'Neill (2014) SC1331, per Batari, Davani (as she then was) and Manuhu JJ which held that other provisions of the National Court Rules apply to judicial review proceedings. The Court in Alex Timothy v. Hon Francis Marus (supra), restated the law in these terms:

“21. The previous view by the Courts in this jurisdiction that because proceedings were commenced by way of Originating Summons, that Order 4 Rule 36 applies, is clearly a misapprehension because as emphasised in the cases referred to above, an Originating Summons in a Judicial Review proceeding is not the same as an ordinary Originating Summons.

22. Additionally, Order 16 does contain its own provisions for summary disposal of an application for leave for review or the...