Application of Evangelical Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PGNC 61; N1317 (10 April 1995)

N1317

PAPUA NEW GUINEA
[In the National Court of Justice]

OS 100 of 1995

THE APPLICATION OF EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA
BY EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA SUPERANNUATION FUND

Lae: Sevua, J.

24 March & 10 April 1995

Practice and Procedure - Prerogative Writs - Certiorari - Application for - Ex parte Application for Leave to Apply for Judicial Review - Discretionary matter - Delay of Eleven and a half months - Applicant with vast Commercial and Financial Resources and easy access to Court and Legal Services - No explanation for delay - Undue delay - Leave refused.

Held:

Leave should be refused in circumstances where leave to make the application for judicial review is made eleven and a half months late, amounting to undue delay which the applicant had failed to explain.

Cases cited:
NTN Pty Ltd -v- Board of Post & Telecommunication & Ors. [1987] PNGLR 70.
Ex Parte Application of Eric Gurupa, Unreported, N 856, 9th January. 1990.
Simon Manjin -v- Post & Telecommunication & Ors., unreported, N 887, 27th June, 1990.

P Ousi for Applicant.

10th April, 1995.

SEVUA, J: The applicant seeks leave for orders for judicial review of:

1. The failure of the Minister for Finance to consider an application filed by the Evangelical Lutheran Church of Papua New Guinea Superannuation Fund for an exemption from the provisions of the National Provident Fund Act.

2. The decision of the Board of Trustees of the National Provident Fund of Papua New Guinea to reject the Petition filed in October, 1993 by the Evangelical Church of Papua New Guinea Superannuation Fund.

3. An order to stay the proceedings WS 404 of 1993 pending the outcome of these proceedings.

4. Such other order as the Court deems fit.

This is an ex parte application for leave for judicial review in which the applicant relied on the affidavit of one Joseph Inara, Executive Director of Kambang Holdings Limited, sworn on 1st March, 1995.

The facts are these. On 7th January 1978, the Evangelical Lutheran Church of Papua New Guinea, (which I shall refer to as "the church"), established a superannuation fund called the Evangelical Lutheran Church of Papua New Guinea Superannuation Fund. It was also known as the 'Sios Wokman Ritaia Fan.' The church was advised by the National Provident Fund (the Fund) in writing on 10th September, 1992 of the fund's existence. The fund also requested the church to complete a standard form and return it to the fund to determine eligibility by the church.

Previously, on 29th August, 1991 the church had applied for exemption under s 42 of the National Provident Fund Act (the Act) to the then Minister for Finance, Mr Paul Pora. No reply was received between 1991 and 1994. Throughout 1992, the church through its then lawyer, Don Sawong attempted to negotiate with the Minister for Finance through the Department of Finance to obtain a reply. The Church's lawyer, Don Sawong, wrote to the department on 25 November, 1992. Since then and up to and including 12 September, 1993; the church's lawyer had exchanged correspondence with the fund and the Department of Finance.

On 24th September, 1993, the fund advised Sawong & Gamoga, lawyers for the church that the NPF Board had decided on 30th August, 1993 "not to approve any exemptions pending the amendments to the NPF Act ------". Subsequently, on 4th January, 1994, the church superannuation fund lodged a petition seeking exemption, once again, under s 42 (2) of the Act. It seems that from that point of time to the date of filing this application, on 10th March, 1995, no response had been received.

There is no evidence at all from the applicant as to what transpired after 4th January, 1994 and I rejected evidence from the bar table by counsel who sought to convince me that negotiation were held between the parties between the dates I have referred to.

This application involves the issue of delay and I consider it fundamental to this application that good reasons for the delay must be established by the applicant in order to satisfy the exercise of my discretion in its favour. The evidence before me disclosed no reasons at all. The evidence disclosed quite clearly that the NPF Board on 30th August, 1993 refused to approve the applicant's application for exemption lodged in 1991. Such decision was communicated to the applicant's lawyers on 24th September, 1993. Order 16 Rule 4 of the National Court Rules provides a 4 months limit for commencing an application for leave for an order in the nature of certiorari to quash any judgment, order etc. The applicant's originating summons seeks an order in the nature of certiorari to quash the decision of the NPF Board I have alluded to earlier. From the 24th September, 1993; the date the NPF Board's decision of 30th August 1993 was communicated to the applicant through it's lawyers, to 10th March, 1995, is almost 18 months. However, if we take the 4 months period to commence on 24 January, 1994, then it has taken almost 12 months for the applicant to seek leave of this Court.

On the evidence before me there is virtually nothing at all relating to the cause of delay. Why didn't the applicant apply for leave soon after it's lawyers received the fund's letter of 24/9/93 on 28 September, 1993? There was nothing in that letter to suggest that the fund might reconsider it's position so why didn't the applicant apply for leave soon after, or at least within four months from 24th September, 1993? As I adverted to earlier, there is no evidence before me to explain the delay. The applicant, with it's vast commercial and financial resources was not placed in a situation where it could not afford to make a prompt application for leave. And most importantly, it's interest in this matter was at all times being represented by Don Sawong, a qualified lawyer, whom I assume, had given appropriate advices as to the possible options or alternatives available in law. Over 11 months elapsed before the applicant decided to apply for leave for judicial review. The applicant is not a simple villager with no access to the Court or legal services. It's headquarters is located in Lae where most of it's commercial interests are established. It therefore has easy access to lawyers and the Court. It had always been represented by Don Sawong of Don Sawong and Associates and later Sawong and Gamoga. Why the delay of 11 months 2 weeks? This delay has not been explained and I consider that there is no basis for me to exercise my discretion in favour of the applicant.

Order 16 Rule 4 of the National Court Rules which I alluded to earlier, provides that if the Court considers there has been undue delay in making an application for judicial review then it may refuse to grant leave or it may refuse to grant any relief sought. As for certiorari, the Rules consider the relevant period for purposes of undue delay is four months after the date of proceedings. In the present case, I consider that the relevant date is 24 September, 1993. Therefore the four months would commence thereafter.

There are numerous cases both reported and unreported on this issue, however I will only refer to a few. In NTN Pty Ltd -v- The Board of the Post & Telecommunication & Ors. [1987] PNGLR 70, the Court refused leave as the plaintiff did not have any statutory rights to be heard in respect of the granting of new licences and who was making the application 11 months out of time. (my underlining).

In the Ex parte Application of Eric Gurupa, N 865 of 9 January, 1990, the Court refused leave on the basis that there had been a delay of almost two years. In Simon Manjin -v- Post & Telecommunication & Ors. N 887 of 27 June 1990, Hinchliffe, J said at p.4: "Before granting leave the Judge must be satisfied, in accordance with O16 r(5), that the applicant has a sufficient interest in the matter ... . That is all he needs to be satisfied about unless there has been undue delay (see O 16 r 4), before granting leave." (my underlining). These cases stand for the principle that where there has been undue delay, leave should be refused since the application for leave for judicial review is in effect an application for writ the of certiorari and the time limit under the Rules is four months.

In the present case, whilst I am satisfied that the applicant has a sufficient interest in this matter pursuant to Order 16 Rule 5, there has been undue delay which has not been satisfactorily explained. In view of the fact that the relevant period specified by the Rules is four months and the applicant had allowed eleven and a half months to elapse before making this application, I am satisfied that there has been undue delay.

It follows therefore from what I have said that in the exercise of my discretion, I refuse leave to make the application for judicial review.

In respect of the application for an Order to stay the proceedings, WS 404 of 1993 which I understand is pending at Waigani, I consider that the appropriate Court and venue to have this application heard is the National Court at Waigani. This application for stay is therefore refused.

Lawyer for Applicant: Warner Shand.