N614

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

MUSSAU TIMBER DEVELOPMENT PTY LTD

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND 
SIR JULIUS CHAN — MINISTER FOR TRADE AND INDUSTRY AND 
ANDREW L TAGAMASAU - SECRETARY FOR FORESTS

Waigani
Woods J

19 June 1987
23 June 1987

ADMINISTRATIVE LAW - Judicial review - When available - Available only when other procedures exhausted - Constitution, s 155(2)(b).

APPEALS - Judicial review - When available - Available only when other procedures exhausted - Constitution, s 155(2)(b).

Held

(1) The procedure for judicial review pursuant to s 155 of the Constitution should only be used when the procedures provided for by the relevant legislation, whether by way of appeals through administrative bodies or appeals to the courts provided for under the National Court Act (Ch No 38) or the Supreme Court Act (Ch No 37), are exhausted or are not available.

(2) Accordingly, where application was made for judicial review of decisions made by the State (by various statutory officers) in connection with the refusal of the State to grant an export licence under the Exports (Control and Valuation) Act (Ch No 108) and the applicant had not pursued his remedies under that Act, the application should be dismissed against all parties.

Application for Judicial Review

This was an application for judicial review pursuant to the Constitution, s 155(2)(b), of certain decisions made under the Exports (Control and Valuation) Act (Ch No 108).

Counsel

C Coady, for the applicant.
Z G G Gelu, for the respondents.
Cur adv vult

23 June 1987

WOODS J: On 9 June 1987 Mussau Timber Development Pty Ltd sought leave to apply for judicial review of certain decisions made by the State in connection with the refusal of the State to grant an export licence for a shipment of logs. On the material before me it was clear that the plaintiff had not exhausted his remedies under the appropriate legislation. The Exports (Control and Valuation) Act (Ch No 108) provides for a licence to be issued before any prescribed goods are exported. This licence is issued by a person appointed as an Export Licensing Officer under s 4 of the Act. Section 5 of the Act provides that an Export Licensing Officer has all the powers and functions of the Minister under the Act and the section further provides that an appeal lies to the Minister from any decision or determination of an Export Licensing Officer under the Act. The section also provides that the decision of the Minister on the appeal is final.

On the material before me there was no evidence that the plaintiff had appealed to the Minister from the decision of the Export Licensing Officer on this occasion.

The procedure for judicial review should only be used when the procedures provided for by the relevant legislation whether by appeals through administrative bodies or appeals to the courts provided for under the National Court Act (Ch No 38) and the Supreme Court Act (Ch No 37) are exhausted or are not available. Section 155 of the Constitution is not to be used in place of the proper appeal or review provisions. It is a provision of last resort after other matters have been exhausted or are not available.
How can the plaintiff ask this Court to review an action by the State when the State has not made a determination which is final. In the circumstances I had no alternative but to refuse the application for leave. At the time I noted that there had been an injunction granted with a guarantee being paid into court. I could not make any order discharging that injunction as it was a mandatory injunction. The guarantee paid into court presumably was to cover any damages. I therefore noted that it would be necessary for the parties to make separate application with respect to the guarantee paid into court.

The plaintiff has now come back to this Court seeking clarification of my order to note that in view of my finding that the administrative procedure of the appeal to the Minister had not been exhausted I should order that the balance of the application for review is still outstanding and that the refusal was only in relation to the appeal to the Minister.

An application of this type against the State cannot be split up against the separate State officers involved. The respective State officers are named because of their roles within the State procedure but in fact the application is against the State. And in deciding on the application I am considering whether the provisions provided for in the appropriate legislation have been followed. I am not deciding whether some have or some have not. As far as I am concerned the administrative appeal procedure has not been exhausted. I am not going to say that the leave for review of the Minister’s decision is refused, however, the application can be continued with respect to other State officers.

The application as a whole was dismissed. Of course this does not preclude a fresh application when all the appropriate provisions have been exhausted and the State’s decision is final.

With respect to the guarantee paid into the court, as this is presumably a security for damages I, in effect, gave liberty to apply. I do not regard this application before me as such an application for specific disposal of the guarantee. It is presumably up to the State to apply for damages or alternatively for the plaintiff to apply for the guarantee to be released and for the State to indicate its interest or not.

Application dismissed

_________________

Lawyer for the plaintiff: Elliot Stubbs & Banutto.
Lawyer for the defendants: State Solicitor.