The Independent State of Papua New Guinea and Pepi Kimas, Secretary for Lands & Physical Planning and Dr Puka Temu, Minister for Lands & Physical Planning v Toka Enterprises Limited (2018) SC1746

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ, Hartshorn and Nablu JJ
• Judgment Date: 20 September 2018
• Citation: (2018) SC1746
• Docket Number: SCR 43 of 2012
• Court: Supreme Court
• Year: 2018
• Judgement Number: SC1746

Full Title: SCR 43 of 2012; The Independent State of Papua New Guinea and Pepi Kimas, Secretary for Lands & Physical Planning and Dr Puka Temu, Minister for Lands & Physical Planning v Toka Enterprises Limited (2018) SC1746

Supreme Court: Injia CJ, Hartshorn and Nablu JJ

Judgment Delivered: 20 September 2018

SC1746

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR 43 of 2012

BETWEEN:

THE INDEPENDENT STATE

OF PAPUA NEW GUINEA

First Applicant

AND:

PEPI KIMAS,

SECRETARY FOR LANDS & PHYSICAL PLANNING

Second Applicant

AND:

DR. PUKA TEMU,

MINISTER FOR LANDS & PHYSICAL PLANNING

Third Applicant

AND

TOKA ENTERPRISES LIMITED

Respondent

Waigani: Injia CJ, Hartshorn and Nablu JJ

2017: June 2nd,

2018: September 20th

SUPREME COURT REVIEW – CIVIL – s. 155(2)(b) CONSTITUTION – JUDICIAL REVIEW – MANDAMUS – Review of three decisions: grant of leave to apply for judicial review; order granting application and mandamus; assessment of damages.

Delay in making application for leave – 13 years – exercise of public power over matters of public interest – disposition of State’s interest in public property to private interest.

SUPREME COURT - PRACTICE AND PROCEDURE - Delay in making application for leave – whether delay undue – whether explanation for delay adequate – whether jurisdiction of National Court properly engaged.

PRACTICE AND PROCEDURE – Order of Mandamus – no reasons given - Award of damages – requirement to comply with s. 5 Claims By and Against the State Act when damages claimed against the State

DAMAGES - Award of damages – whether evidence of purported loss sufficient

Cases Cited:

Papua New Guinea Cases

State (Conlon Construction Co) v. Court County Council Unreported I.R. 31 July 1975 Avia Aihi v. The State [1981] PNGLR 81

Kapal v. Independent State of Papua New Guinea [1987] PNGLR 417

Kekedo v. Burns Philip Co Limited [1988-89] PNGLR 122

NTN Pty Ltd v. PTC [1987] PNGLR 70

Application of Eric Gurupa (1990) N856

Application of Evangelical Lutheran Church [1995] PNGLR 276

Pipoi v. Seravo (2001) N2120

Joseph Yonge v. Luke Niap (2001) N2101

Mision Asiki v. Manasupe Zurenuoc (2005) SC797

Kelvin Rumpia v. Abaris Buri (2006) N3035

Peter Makeng v. Timbers (PNG) Ltd (2008) N3317

Azzam El Cheikh v. The Honourable Rimbink Pato, Minister for Foreign Affairs and Immigration and Solomon Kantha, Acting Chief Immigration Officer and the Independent State of Papua New Guinea (2017) N6879

Overseas Cases

In re Wall [1890] Viclaw Rp 143

Ex parte Anlezark; Re Manufacturers’ Mutual Insurance Ltd [1930] NSW St Rp 75

Ex parte Ozone Theatres (1949) 78 CLR 389

Inland Revenue Commissioner v. National Federation of Self-Employed and Small Business Ltd [1982] A.C 617

Counsel:

Mr. L.A. Jurth and Mr. D. Levy, for the Applicants

Mr. A. Mana, for the Respondent

20th September, 2018

1. INJIA CJ: I have read the draft judgments of Justice Hartshorn and Justice Nablu and agree with the reasons for their decision to uphold the application for review and the orders they propose. I give some additional reasons of my own.

2. This is an application to review three decisions made by two Judges in National Court judicial review proceedings OS N0. 240 of 2007 Toka Enterprises Ltd v The Independent State of Papua New Guinea, Pepi Kimas, Secretary for Lands and Physical Planning and Dr Puka Temu, Minister for Lands and Physical Planning. On 7th June 2007, the first Judge granted the plaintiff (respondent in this application) leave to apply for judicial review under Order 3 rule 3 of the National Court Rules (NCR) on 7th June 2007 (first decision). The substantive relief to be sought if leave were granted was an order of mandamus to compel the defendants (applicants in this application) to issue State Leases to the respondent over the land in question. The leave application was made 13 years after the applicants failed to deliver him official State Leases over the land. On 27th June 2008, some 12 months after leave had been granted, the second Judge granted the substantive application and ordered that damages be assessed (second decision). On 27th November 2008, some five months after the trial on liability was concluded, the second Judge awarded damages. All three proceedings were conducted ex parte. The applicant did not appeal any of those three decisions. Instead, the applicants moved an application before a third Judge seeking orders to set aside the orders of the second Judge. On 15th February 2012, that application was dismissed. On 20th December 2012, an appeal against the third Judge’s decision was dismissed by the Supreme Court on competency grounds. On 25th October 2012, the applicants filed an application for review of the three decisions. On 29th November 2013, the applicants were granted leave to apply for judicial review in the Supreme Court under s 155(2)(b) of the Constitution. We heard the application for and reserved our decision which we now give.

3. In an application for judicial review, three things are of essence – time, the public nature of the decision under review, and an inter partes hearing.

4. Time is of essence in judicial review proceedings conducted before the National Court and the Supreme Court. The Courts do not play by the timelines of the parties and do not tailor the dispensation of justice along the convenience of the parties in the case. Courts should be on guard to detect long delayed cases that parties rush before the Court to obtain rushed judgments that do not properly deal with the substantive issues in the case and as a result of which substantial injustice may occur.

5. In the case at hand, the respondent delayed the commencement of judicial review proceedings in the National Court by 13 years. After leave for review was obtained, the respondent delayed the trials by several months. It took the State between 4- 6 years to commence proceedings in the National Court to contest the second and third decisions and to bring judicial review proceedings in the Supreme Court. Time, it is clear to me, was the least of the concerns of the parties even though the public property was a prime piece of land of huge commercial potential and value that was situated in Waigani that would have prompted the parties to seek justice from the Courts with due expediency. It would be of interest to learn of the activities of the parties in the delay period that soaked up that much time.

6. It is imperative to understand the importance of the public nature of the case for judicial review. The exercise of public power over matters of public interest calls for special care from those whose duty it is to protect the public interest and those seeking to take or acquire interests or benefits in public property and funds to ensure that the State is not unjustly deprived of its interest. The Courts are duty-bound to deal with the substantive issues in the case on the merits and sanction the disposition of the State’s interests in public property to private interests and even other public bodies in clear cases where it is demonstrated, by evidence, that the State intends to divest itself of the public property and according to law.

7. This particular case before the National Court was of immense importance to the parties, the government and the public. The case was rushed by the parties and rushed by the Court constituted by different Judges, that resulted in substantial injustice to the State that represented the public interest in the land and public funds.

8. The first decision (leave application) was rushed by the Court. As a result, two important requisites under Order 16 rule 4 were given inadequate consideration or not at all. Order 16 rule 4 is in the following terms:

“4. Delay in applying for relief. (UK. 53/4)

(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant-

(a) leave for the making of the application; or

(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(2) In the case of an application for an order of certiorari to remove any judgement, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.

(3) Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.”

9. The question of undue delay in the first part of Sub-rule 1 is to be alongside the factors appearing in the second part of Sub-rule (1). The relevant period to bring an application for leave for review in respect of an application for certiorari is four months. There is no time prescription for an application for leave to apply for an order of...