Rabaul Shipping Ltd v Allan Marat

• Jurisdiction: Papua New Guinea
• Judge: Gavara - Nanu J.
• Judgment Date: 29 August 2014
• Citation: (2014) N5715
• Court: National Court
• Year: 2014
• Judgement Number: N5715

Full : OS (JR) No. 838 of 2011; Rabaul Shipping Limited v Allan Marat in his capacity as the Attorney- General and the Nominal Defendant for the Head of State and PNG Ports Corporation Limited and The Independant State of Papua New Guinea (2014) N5715

National Court: Gavara - Nanu J.

Judgment Delivered: 29 August 2014:

N5715

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 838 OF 2011

BETWEEN:

RABAUL SHIPPING LIMITED

Plaintiff

AND:

ALLAN MARAT in his capacity as the ATTORNEY- GENERAL AND THE NOMINAL DEFENDANT FOR THE HEAD OF STATE

First Defendant

AND:

PNG PORTS CORPORATION LIMITED

Second Defendant

AND:

THE INDEPENDANT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Gavara-Nanu J.

2013: 8 May

2014: 29 August

JUDICIAL REVIEW - Regulation made pursuant to s. 51 of the Harbours Act, Ch: No. 240 by the Head of State - Sections of the Regulation challenged as ultra vires the enabling Act, thus invalid - Plaintiff failing to demonstrate that the sections of the Regulation being challenged are ultra vires the enabling Act - Sections are not inconsistent with s. 51 of the Harbours Act and are therefore not ultra vires - Application for judicial review refused.

Cases cited:

Papua New Guinea Cases

Dr Allan Marat as Attorney-General of Papua New Guinea & The State -v- Hanjung Power Limited SC1357

The Minister for Lands v. William Robert Frame [1980] PNGLR 433

Kuya Kehi v. Keli Theodore [1978] PNGLR 217

Matu Mining Pty Ltd v. Philemon Embel (Attorney-General) and Kare Puga

Development Corporation Pty Ltd (1995) SC 483

NTN Pty Ltd v. The State [1986] PNGLR 167

Pansat Communication Pty Ltd v. Momis (1995) N1321

PNG National Stevedoring Pty Ltd v. Andrew Baing (2001) N2069 Rakatani Peter v. South Pacific Brewary Ltd [1976] PNGRL 537; SC109

In re. Constitution Section 19(1) Reference by Allan Marat (1912) PGSC 20

In the Matter of the Organic Law on National and Local-Level Government Elections; Paias Wingti v. Kala Rawali (2008) N3286

The State v. Downer Construction (PNG) Ltd (2009) SC979

Willie Edo v. Hon. Sinai Brown (2006) N3071

Overseas cases cited:

Carbines v. Powell (1925) 36 CLR 88

Gentel v. Rapps [1902] 1 K.B 160

Moton v. Union Steamships Company of New Zealand (1951) 83 CLR 402

Shanahan v. Scott (1957) 96 CLR 245

Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B 223; [1947] 2 A11 ER 680

Sambel v. Cook [1962] V.R 448

Turner v. Owen (1990) 96 ALR 119

Counsel:

I. Molloy with E.Tokoboy, for the Plaintiff

R. J. Weff SC with P. Tabuchi, for the Defendants

29th August, 2014

1. GAVARA-NANU J: By a notice of motion filed pursuant to Order 16 r 5 (1) of the National Court Rules (NCR), and leave granted on 12 December, 2011, the plaintiff applies for judicial review of the decision of the Head of State acting on advice of the National Executive Council (NEC) to make the Ports (Management and Safely) Regulation 2010, (the Regulation) more specifically ss. 4, 7, 11, 12 and 20, ultra vires the Act s. 51 of Harbours Act, Ch. No. 240 (the Act).

2. The plaintiff contends that these sections are ultra vires s. 51 of the Harbours Act and are consequently null and void.

3. The plaintiff operates and carries on a shipping business in the nature of transportation of people and goods in the declared port of Rabaul, in East New Britain Province.

4. The plaintiff seeks a declaration that ss. 4, 7, 11, 12 and 20 are either wholly or in part ultra vires the Act.

5. Alternatively the plaintiff seeks an order in the nature of certiorari to quash these sections as being ultra vires.

6. The plaintiff also seeks an order in the nature of prohibition to prohibit the second defendant, its servants or agents from enforcing or giving effect to the sections.

7. Further or alternatively, the plaintiff seeks an order that the second defendant, its officers, servants and or agents be restrained from enforcing or giving effect to the sections.

8. The plaintiff contends that the sections will adversely affect its shipping business.

9. Alternatively it is contended that the sections are unreasonable, and they do not fall within the contemplation of the enabling Act, or are not reasonably proportionate to the enabling provision (s. 51) of the Act.

10. Further or alternatively, the plaintiff claims that the scope and meaning of the sections are so unclear that they cannot impose any clear obligation on the persons affected.

11. Section 51 of the Act is in these terms:

51. Regulations.

(1) The Head of State, acting on advice, may make regulations, not inconsistent with this Act, prescribing all matters that by this Act are required or permitted to be prescribed, or that are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular, for prescribing penalties of fines not exceeding K10,000.00 and default penalties of fines not exceeding K250.00 for offences against the regulations.

(2) Without limiting Subsection (1), the regulations may deal with the following matters—

(a) the security and facility of navigation in declared ports;

(b) the regulation, control and supervision of loading and unloading, the use of machinery, equipment and appliances in loading and unloading and the storage and handling of goods in declared ports;

(c) the construction and the method of construction of—

(i) wharves, docks piers, jetties or embankments; and

(ii) sheds, landing stages, slips, platforms, roadways, railways, tramways or hoisting shears and engines;

(d) the dredging, cleansing and scouring of declared ports, the improvement of the beds and channels of ports and the abating and removing of wrecks and impediments, obstructions and nuisances to navigation in ports;

(e) the supply and removal of ballast and water for shipping;

(f) the improvement and management of declared ports and facilities in declared ports;

(g) the regulation and management of port craft, except as provided for by the Navigation Act, 1889 of the former Territory of Papua (Adopted) or the Coastal Shipping, Ports and Harbours Regulations 1938 of the former Territory of New Guinea (Adopted);

(h) the anchoring, mooring and fastening of vessels and port craft, and the shifting, removal and control of vessels and port craft, in declared ports whether underway or at anchor, afloat or aground, hove down, hauled up or in dock;

(i) the regulation and control of the use of lights and fire on board vessels within declared ports;

(j) the appointing of places for the loading or unloading, and the manner of loading or unloading, of any inflammable or explosive substantive;

(k) the storage within declared ports of inflammable or explosive substances;

(l) the licensing of ferries and port craft, boatmen and

operators of ferries and port craft, subject to such conditions as are prescribed in the regulations;

(m) the control of lights within a declared port with a view to the safety of navigation;

(n) technical, operational and safety requirements and standards in ports;

(o) the exemption (conditionally or unconditionally) of persons or operations from the application of this Act or specified provisions of this Act;

(p) fees to be paid in respect of any matter under this Act and the recovery, refund, waiver or reduction of such fees;

(q) conditions which the Commissioner is required to impose on the issue of a license.

(3) Without limiting Subsection (1), the regulations may contain provisions of a saving or transitional nature consequent on the enactment of this Act or anything done under or for the purposes of this Act.

(4) If the regulations grant an exemption from the requirement to hold a licence under Part IIIA, the regulations may require a person exempted from the requirement to be treated as a licensee for the purposes of specified provisions of this Act.

(5) The regulations may—

(a) be of general application or of limited application according to the persons, areas, times or circumstances to which they are expressed to apply; or

(b) provide that a matter or thing in respect of which regulations may be made is to be determined, regulated or prohibited according to the discretion of the Minister responsible for treasury matters or the Commission; or

(c) refer to or incorporate, wholly or partially and subject to such modifications, conditions, or restrictions as are prescribed by the regulations, any standard, code, procedure or other document prepared or laid down by the Standards Association of Australia or any other authority, as in force from time to time or as in force at a particular time.

12. Sections 4, 7, 11, 12 and 20 of the Regulation are reproduced below in full for ease of reference.

13....