Application by Roteps Pty Ltd [1991] PGNC 37; [1991] PNGLR 387; N1017 (8 November 1991)

N1017

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPLICATION OF ROTEPS PTY LTD

Mount Hagen
Woods J

25 October 1991
8 November 1991

ADMINISTRATIVE LAW - Judicial review - When available - Internal administration - Discretion in processing application - No substantive right affected - Review not available.

Held

Judicial review is not available in respect of the making of discretionary decisions in the internal administrative arrangements of a government department when no tangible right has been affected.

Accordingly, an intimation from the relevant Minister that he would smooth the path of an application for a State land lease was not open to review.

Counsel

S Norum, for the applicant.
R Kisau, for the State.
Cur adv vult

8 November 1991

WOODS J: The applicant, Roteps Pty Ltd, is seeking a review of the decision of the Minister for Lands to revoke an exemption from advertisement of portion 1257 Mount Hagen.

The history of this matter is that, in 1984, the applicant submitted an application for the granting of a lease over the land portion 1257. In 1987, the applicant states he applied to the Minister to exempt the subject land from advertisement. In February 1990, the Minister by virtue of his powers under s 57 of the Land Act (Ch No 185) exempted the land described as portions 1257 and 1025 from advertisement. However two months later, in April 1990, the Minister revoked that exemption for the reasons that the land was already occupied and being developed by other parties. It is in respect of this revocation of the exemption that the applicant is seeking the intervention of this Court.

This Court must first consider what is the nature of the act which the applicant states is wrong and contrary to natural justice. It is a discretion to make it easier for the applicant to apply for a lease of some land. It is not as if the applicant has actually received notification that he has been granted a lease, he has been given no interest in land. All the applicant has received was an advice that the Minister would agree that the passage of the application would be smoothed. It is quite clear that the applicant’s application still has to proceed through the normal process of being assessed by the Lands Department and going before the Land Board and then finally being approved by the Minister, there was thus a long way to go before the applicant would actually have any land if one presupposed he was successful all through.

This application is asking the Court to review a ministerial discretion to smooth the path of an application, not a discretion to grant or not to grant some land. There have been no tangible rights granted so I am unable to see how this Court can intervene in the purely internal administrative arrangements of the Department of Lands when no one has actually lost any tangible right. It is still open to the applicant to apply for the land, he has not been prevented from doing that, however it is clear that any such application would be doomed to failure because as the Minister said in his letter of April 1990 the land was already legally occupied by other parties — so surely even if the exemption from advertisement had remained the applicant would not have even got through the Land Board for the reasons the Minister has explained. So even if the Minister had not revoked the exemption he would have had to have refused it in the end. The revocation merely advised parties earlier rather than later. Whilst one may be able to criticise the Minister for not knowing the status of Government land this Court cannot intervene in such a situation where there is no real substantive right. It is not the task of this Court to administer the Department of Lands in such area; exemptions are merely administrative discretions which do not give rights but assist with administration. It is not part of judicial review to substitute the opinion of a judge for that of the authority constituted by law to decide the matter in question. The applicant has not shown cogent or convincing reasons and exceptional circumstances where some substantial injustice was manifest, instead merely that there appear to be problems and confusion in the administration of the Department of Lands which could call for some kind of inquiry into the operation of the department. I find that the discretion of the Minister with respect to exemptions as to how applications for leases are dealt with is not an act to which judicial review should lie.

There is a further matter to note about this exemption. The Minister’s notice refers to s 57 (5) of the Land Act. However that section only relates to applications for land in townships. Yet it appears from the applicant’s affidavit and annexures that this land is agricultural or rural land outside a town so perhaps the Minister’s original notice was invalid and therefore the whole application for judicial review ill-conceived. If this is so it reinforces any concern as to how such confusion can be arising within the Department of Lands.

I dismiss the application.

Application dismissed

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Lawyer for the applicant: J Mek Teine.
Lawyer for the State: Solicitor-General.