Steamships Ltd v Hon. Ano Pala as Minister for Justice & Attorney – General on behalf of the Head of State acting on Advice and Others

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 22 December 2023
• Neutral Citation: N10651
• Citation: N10651, 2023-12-22
• Counsel: Mr. E. Anderson & Ms. J. Nigs, for Plaintiff,Mr. R. Uware, for the First to Fourth Defendants,Mr. R. J. Webb SC & Mr. T. Cooper, for Fifth Defendant
• Docket Number: OS (JR) NO. 572 OF 2017
• Hearing Date: 09 December 2019,22 December 2023
• Court: National Court

N10651

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 572 OF 2017

Between

Steamships Ltd

Plaintiff

v.

Hon. Ano Pala as Minister for Justice & Attorney – General on behalf of the Head of State acting on Advice

First Defendant

and

National Executive Council comprising of the Prime Minister as the Chairman of the NEC and other members

Second Defendant

and

Hon. Benny Allan as Minister for Lands

Third Defendant

and

The Independent State of Papua New Guinea

Fourth Defendant

and

Tasion Group Limited

Fifth Defendant

Waigani: Makail, J

2019: 09^th December

2023: 22^nd December

JUDICIAL REVIEW — Review of decision to uphold appeal by a non-party to an application for renewal of State Lease before Land Board — Appeal by non-party upheld and State Lease awarded to non-party — Land Act, 1996 — Sections 62 & 120(2)

JUDICIAL REVIEW — Application for renewal of State Lease — Appeal against Land Board recommendation to grant renewal of State Lease — Grounds of — Ultra vires — Error of law — Unreasonableness — Bias — Fraud — Actual and constructive fraud — Land Act, 1996 — Sections 57, 62 & 120 — Land Registration Act — Section 33(1)(a)

EVIDENCE — Similar fact evidence — Character evidence — Witness found liable for fraud in unrelated court proceedings — Propensity to re-offend — Use of similar fact evidence in judicial review proceedings discussed — Adoption of common law principles on similar fact evidence in civil proceedings — Relevant principles discussed and applied — Constitution — Schedule 2.2

PRACTICE & PROCEDURE — Locus standi — Proof of locus standi — Company as applicant for judicial review — Company as applicant for renewal of State Lease — Two companies — Amalgamation of two companies — Effect of — Companies Act, 1997 — Sections 232, 238 & 239

PRACTICE & PROCEDURE — PLEADINGS — Pleading of grounds of judicial review — Fraud — Incorporation of company — Officers of State department as shareholders and directors of company — Reliance on nexus or association between shareholders and directors of company and officers of State department — Inference of fraudulent conduct to be drawn — Reliance on unrelated National Court judgment — Finding of fraud against director of company in unrelated proceeding — Failure to plead allegations — No leave granted to rely on grounds — National Court Rules — Order 16, rules 3(2)(a), 3(4) & 6(2) & (3)

PRACTICE & PROCEDURE — Application for costs on solicitor/client basis — Conduct of lawyer and party to proceeding — Costs unreasonably incurred — Requirement to give prior notice — Forewarning notice to seek costs on solicitor/client basis — Costs on solicitor/client basis awarded on higher scale than costs on party/party basis — Lack of evidence of forewarning notice — Application declined — National Court Rules — Order 22, rules 34 & 35

Facts

Following a National Court decision and order directing a re-hearing of the plaintiff's application for renewal of a State Lease, the Papua New Guinea Land Board (“Land Board’) re-heard the application and recommended to the Head of State to renew the State Lease of the plaintiff. The plaintiff was the sole applicant before the Land Board. No-one else appeared at the Land Board re-hearing or made any objection to the plaintiff's application for renewal. An appeal was made by a company called ‘Tasion Group Holding Ltd’ who was a non-party at the Land Board re-hearing. Further, it was a non-party to this proceeding. The Head of State acting on advice of the Minister upheld the appeal, and the State Lease was registered to the fifth defendant (Tasion Group Limited). It is from this decision that this proceeding was filed. At the trial, the State parties objected to the plaintiff from commencing this proceeding on the ground that it lacked the requisite locus standi. They argued that the plaintiff was not the original registered proprietor. It was a company called New Guinea Motors (1988) Pty Ltd and it should have been this company who should have applied for renewal and should have commenced this proceeding. The plaintiff responded that New Guinea Motors (1988) Pty Ltd was amalgamated with it prior to the expiry date of the State Lease. Pursuant to Sections 232, 238 and 239 of the Companies Act, 1997 it had the requisite locus standi to commence this proceeding.

Held:

1. New Guinea Motors (1988) Pty Ltd was amalgamated with the plaintiff pursuant to Sections 232, 238 and 239 of the Companies Act, 1997, and the plaintiff did not lack the requisite locus standi to commence this proceeding.

2. The phrase “A person aggrieved by the decision of the Land Board may….” used in Section 62 of the Land Act, includes a non-party to the re-hearing at the Land Board for an application for renewal of a State Lease.

3. There is no expressed procedure in Section 62 of the Land Act by which the Minister for Lands may adopt to allow an interested party to an appeal from a decision of the Land Board to be heard. However, adopting the rule on audi alteram partem a party having an interest in the appeal is entitled to be informed of the appeal and/or given a copy of appeal to the Minister for Lands.

4. A failure to inform the plaintiff of the appeal by a non-party under Section 62 of the Land Act despite the plaintiff's repeated requests for the information is indicative of a deliberate decision by the State parties and in particular the third defendant to conceal the non-party's appeal from the plaintiff hence indicative of an ulterior motive.

5. There is no expressed provision in the Land Act for a renewal application for a State Lease of land to be made to the Land Board nor is there a distinction made between a renewal application and a fresh application for a State Lease in Section 57(2) of the Land Act because of the words “all applications for grant of leases” is used to define the functions of the Land Board when considering applications for grant of State Leases.

6. In a case where a lessee of a State Lease has applied for its renewal prior to its expiration, there is no requirement for the Secretary of the Department of Lands and Physical Planning to advertise it as being available for leasing pursuant to Sections 68 and 69 of the Land Act. The reason is simple, until it has expired, the lessee is the current State Leaseholder, and the land under the State Lease is not vacant.

7. A registered proprietor of a State Lease holds an indefeasible title under the doctrine of indefeasibility of title and unless fraud is proved under Section 33(1)(a) of the Land Registration Act, a breach of Section 41 of the Constitution will not be sufficient to displace a registered proprietor's State Lease Title.

8. In civil proceedings the common law principles of similar fact evidence to establish the bad character of a defendant are adopted and applied under Schedule 2.2 of the Constitution. In judicial review proceedings under Order 16 of the National Court Rules similar fact evidence can be used subject to the plaintiff establishing that:

(1) it is logically relevant to determine a matter in issue.

(2) it is used to rebut a defence.

(3) it is not oppressive or unfair to the other side.

(4) the other side has fair notice of it and is able to deal with it.

(5) to give a fair notice to the other side, it must be pleaded as a separate ground or part of a series of grounds of judicial review in the Statement made pursuant to Order 16, rule 3(2)(a) of the National Court Rules.

9. In the present case, it is not necessary to consider the first three requirements because the plaintiff failed to satisfy the fourth and fifth requirements. It failed to give a fair notice to the defendants as it neither pleaded nor obtained leave to rely on similar fact evidence to establish the character of one of the defendants' witnesses as a ground or part of a series of grounds of judicial review in the Statement made pursuant to Order 16, rule 3(2)(a), 3(4) & (6)(2), (3) & (4) of the National Court Rules. The similar fact evidence was rejected.

10. It was open to the Court to find that, among other breaches, irregularities and discrepancies identified in the decision-making process, the failure by the State parties to inform the plaintiff of an appeal by a non-party, namely ‘T.G. Holding Ltd’ to the third defendant (Minister for Lands and Physical Planning) leaves a strong inference that the fifth defendant colluded with the State parties to deprive the plaintiff of the State Lease. This conduct constituted fraud within the meaning of Section 33(1)(a) of the Land Registration Act.

11. The application for judicial review is upheld and among other orders, an order in the nature of certiorari is granted to bring into this Honourable Court and quash the decisions set out in Part 2 of the amended statement pursuant to Order 16, rule 3(2)(a) of the National Court Rules:

(a) A decision by the Head of State concerning Lot 2 Section 387 Hohola (the Land) on or before 05^th May 2017 and published as Item No. 20 in Gazette G354 dated 05^th May 2017 upholding an appeal by Tasion Group Ltd against a recommendation by the Land Board to grant a State Lease of the land to the plaintiff.

(b) A decision by the Head of State concerning Lot 2 Section 387 Hohola (the Land) on or before 05^th May 2017 and published as Item No. 20 in Gazette G354 dated 05^th May 2017 granting the Land to Tasion Group Ltd.

(c) A decision by the third defendant on a date unknown but on or before 05^th May 2017 to advise the Head of State to make the decision set out in and published as Item No. 20 in Gazette G354 dated 05^th May 2017 upholding an appeal by Tasion Group Ltd against a recommendation by the Land Board to grant a State Lease of the land to the plaintiff.

(d) A decision by the third defendant on a date unknown but on or before 05^th May 2017 to advise the Head of State to make the decision set out in and published as Item No. 20 in Gazette G354 dated 05^th May 2017 granting the Land...