Manus Provincial Government v Tarsicius Kasou, The Independent State of Papua New Guinea and Jaha Development Corporation Ltd [1990] PNGLR 395

• Jurisdiction: Papua New Guinea
• Judge: Ellis J
• Judgment Date: 27 September 1990
• Court: National Court
• Citation: [1990] PNGLR 395
• Year: 1990
• Judgement Number: N917

Full Title: Manus Provincial Government v Tarsicius Kasou, The Independent State of Papua New Guinea and Jaha Development Corporation Ltd [1990] PNGLR 395

National Court: Ellis J

Judgment Delivered: 27 September 1990

N917

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MANUS PROVINCIAL GOVERNMENT

V

TARSICIUS KASOU, INDEPENDENT STATE OF PAPUA NEW GUINEA AND JAHA DEVELOPMENT CORPORATION LTD

Lorengau & Rabaul

Ellis J

14-16 May 1990

27 September 1990

ADMINISTRATIVE LAW — Judicial review of executive acts — Standing to challenge — "Sufficient interest" — Determination of ownership of timber rights — Whether Provincial Government has standing to challenge — Forestry (Private Dealings) Act (Ch No 217), s 7 (5).

ADMINISTRATIVE LAW — Particular bodies — Functions and powers — Timber rights legislation — Prescribed authority — Power to "make such investigations as it thinks necessary" — Imports power to make reasonable investigations — Forestry (Private Dealings) Act (Ch No 217), s 7 (5).

ADMINISTRATIVE LAW — Judicial review of executive acts — Ouster provisions — Statutory exclusion of liability "in civil proceedings" — Not excluding judicial review — Whether excludes orders for costs — Forestry (Private Dealings) Act (Ch No 217), s 7 (4) — Constitution, s 155 (4).

COSTS — Departing from general rule — Privative clause excluding liability "in civil proceedings" — Discretionary power to refuse costs exercised — Forestry (Private Dealings) Act (Ch No 217), s 7 (4).

The Forestry (Private Dealings) Act (Ch No 217) makes provision for the sale and disposal of timber rights subject to certification as to the right to sell by a prescribed authority.

Section 7 (5) requires a prescribed authority to "make such investigations as it thinks necessary to ascertain the ownership" of timber, and empowers the prescribed authority to appoint agents for sale.

Section 7 (4) provides:

" (4) The State or prescribed authority is not liable in civil proceedings by reason of —

(a) any statement in a certificate given by a prescribed authority under this section; or

(b) the manner in which the information on the basis of which a certificate has been given was obtained."

Held:

The relevant provincial government had sufficient interest to commence and maintain proceedings for judicial review of the certification as to ownership of timber within a land forest area under s 7 (5) of the Forestry (Private Dealings) Act on behalf of numerous customary landowners whose rights were affected by reason, inter alia, of:

(a) the importance of property rights in terms of local culture;

(b) the representative nature of the elected government; and

(c) the genuine concern to right what objectively appeared wrong and should be put right.

SCR No 4 of 1980; Re petition of Somare [1981] PNGLR 265, applied.

(2) The power in s 7 (5) of the Forestry (Private Dealings) Act to "make such investigations as it thinks necessary", imported a requirement to make reasonable investigations.

Reade v Smith [1959] 78 NZLR 996 and Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, considered and applied.

(3) The provisions of s 7 (4) of the Forestry (Private Dealings) Act did not operate to exclude the exercise by the National Court of the inherent power of judicial review under s 155 (4) of the Constitution.

(4) Because s 7 (4) of the Forestry (Private Dealings) Act was designed to avoid a prescribed authority from becoming liable in civil proceedings a costs order against the prescribed authority would be contrary to that intention and should, in the exercise of discretion, be refused.

Cases Cited

The following cases are cited in the reported judgment:

Arawe Logging Pty Ltd v The State [1988-89] PNGLR 216.

Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320; [1965] 3 All ER 371.

Augustine Olei v The Provincial Land Court at Port Moresby [1984] PNGLR 295.

Errington v Minister of Health [1935] 1 KB 249.

Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898.

Iambakey Okuk v Fallscheer [1980] PNGLR 274.

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.

Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.

R v Electricity Commissioners; Ex parte London Electricity Joint Committee [1924] 1 KB 171. )

R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1980] QB 407; [1980] 2 All ER 378 (QBD); [1980] 2 WLR 579; [1980] 2 All ER 378 (CA); [1982] AC 617; [1981] 2 WLR 722; [1981] 2 all ER 93 (HL).

R v Woodhouse [1906] 2 KB 501.

Reade v Smith (1959) 78 NZLR 996.

Reva Mase v Independent State of Papua New Guinea (Narokobi AJ, 1 October 1980, Judgment No N260, unreported).

SCR No 3 of 1989; Re Forestry (Private Dealings) Act [1990] PNGLR 222.

SCR No 4 of 1980; Re petition of Somare [1981] PNGLR 265.

Van Der Kreek v Van Der Kreek [1979] PNGLR 185.

Judicial Review

This was an application for judicial review of a decision of the first respondent who issued a certificate of authority naming the 14 directors of the third respondent company as the landowners within the Manus West Coast Local Forest Area.

Counsel:

R Taylor, for the applicant.

S Sitapai, for the first and third respondents.

Cur adv vult

27 September 1990

ELLIS J.

HISTORY OF THE PROCEEDINGS

By an originating summons, dated 5 December 1989 and filed 7 December 1989, the Manus Provincial Government sought leave to apply for judicial review in accordance with the provisions of O 16 of the National Court Rules. The contemporaneous statement in support of the application disclosed that the application was seeking an order in the nature of certiorari to quash the decision of Tarsicius Kasou (who became the first respondent) made on or about 9 August 1989 "by way of purported certification under s 7 (2) of the Forestry (Private Dealings) Act (Ch No 217) in relation to persons purporting to sell or dispose of timber in the 'West Coast Manus Local Forest Area'".

Particulars were given in support of the grounds upon which relief was sought. Those grounds were:

(a) That the first respondent lacked jurisdiction to make the decision.

(b) That the procedures required by law to be observed in connection with the making of the decision were not observed.

(c) That there was no evidence or other material to justify the decision.

(d) Denial of natural justice.

(e) Failure to take into account relevant considerations.

(f) That the decision was so unreasonable that no reasonable decision-maker could ever have come to it.

Following an ex parte application before Konilio J on 2 March 1990, leave was granted, his Honour being satisfied "that the Manus Provincial Government has sufficient interest in the matter to which the application relates". The court also ordered that copies of the application be served by delivering copies to all community government areas within the Manus West Coast Area and to the first respondent in addition to serving copies on Jaha Development Corporation Pty Ltd (the third respondent) and Kei Beseu Kampani Pty Ltd. An order was also made that the application be advertised through Radio Manus.

Subsequently, the applicant filed a notice of motion seeking discovery and the administration of interrogatories. A further notice of motion, also filed on 5 March 1990, reformulated the prayers for relief in the following terms:

"1. An order in the nature of certiorari to remove into the Court for quashing the decision of Tarcisius Kasou made on or about 9 August 1989 by way of a purported certification under Section 7 (2) of the Forestry (Private Dealings) Act (Chapter No 217) in relation to persons purporting to sell or dispose of timber in the 'Manus West Coast Local Forest Area'.

2. That the said decision be quashed forthwith upon removal to the Court.

3. That the assent of the Minister for Forests given under Section 6 (2) of the said Act to an agreement between Jaha Development Corporation Pty Limited and Dominic Palolen, Dr Thomas Mundri, Michael Sendren, Timothy Kundrakei, William Botakeleh, Silas Bomai, Raphael Sindrohi, Silih Sawi, Kela Bonasu, John Kalai, Bernard Molai, Joe Bomanus, Joe Bokundrui and Levi Bomai dated 9 August 1989 be stayed until such time as the Minister receives a further certificate made under Section 7 (2) of the said Act in respect of that agreement or an amended agreement.

4. Such further orders as this Honourable Court deems fit."

[His Honour then considered matters not calling for report.]

CONTEXT OF THE DECISION CHALLENGED

It is clear that the Forestry (Private Dealings) Act (Ch No 217) creates a sequence of events whereby the sale of timber by customary owners may occur. First, in accordance with the procedures in s 4 (1), the Minister for Forests declares the area in question to be a Local Forest Area (LFA) for the purposes of the Act. Secondly, pursuant to s 7, the relevant owners are ascertained....