Gewa v Ogove [2007] PGNC 126; OS 277 of 2007 (20 July 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 277 of 2007

BETWEEN

COPLAND GEWA
Plaintiff

DICK OGOVE, the Manager, NHC Popondetta branch,
First Defendant

HIS WORSHIP LESLIE ASIMBA, AS ACTING MAGISTRATE SITTING AT POPONDETTA DISTRICT COURT
Second Defendant

JOHN NUMAPO, AS CHIEF MAGISTRATE OF MAGISTERIAL SERVICES OF PAPUA AND NEW GUINEA
The Defendant

THE INDEPENDENT STATE OF PAPUA AND NEW GUINEA
Fourth Defendant

Waigani: Lay J.
2007: 14 June & 20 July

CIVIL - administrative law - judicial review of District Court decision - arguable case, excess of jurisdiction - whether judicial review appropriate remedy.

PNG Cases Cited
The State v Rush ex parte Rush; application of Alan Douglas Rush [1984]
Ambra Nii on behalf of himself and other members of the Toisap Clan [1991] PNGLR 357
Jeffrey Lewis v Raphael Appa and David Yaplin N1304 (1995)
PNGLR 124, Robert Lak v Dessie Magaru [1999] PNGLR 572,
Justin Wayne Tkatchenko v Dessie Magaru (2000) N1956
Sakawar Kasieng v Andrew Baigry (2004) N2562
Jimmy Mostata Maladina v Posain Polah (2004) N2568
David Kuna v Vincent Eralia (2004) N2771

References
District Court Act

Counsel
J. Napu, For The Plaintiff
A. Chillion, For The Defendants,

20 July, 2007

1. LAY J.: The Plaintiff was the defendant in proceedings in the District Court at Popondetta which ordered him to pay rental arrears to the First Defendant in the sum of K 10,311.43. The plaintiff was also ordered by the District court to be evicted from the National Housing Corporation house at Section 3 Lot 3, Popondetta.

2. The Plaintiff seeks leave to proceed with judicial review proceedings to bring up to this court and quash the decision of the District Court.

3. A judge considering an application for leave to proceed with judicial review should consider (1) whether the applicant has sufficient interest in the subject matter, (2) whether there has been any delay which ought to deprive the applicant of relief, (3) whether there is an arguable case, (4) and whether the applicant has exhausted all administrative remedies before coming to the court.

4. The decision which the Plaintiff seeks to have reviewed affects him directly so that I am satisfied that he has sufficient interest in the matter. The decision was made in late April and these proceedings commenced on 22 May 2007 so that I am satisfied that there has been no significant delay.

5. On the question of an arguable case the jurisdiction of a Magistrate of the District Court is restricted to K 10, 000 pursuant to Section 21(1)(a) of the District Court Act. The magistrate has acted in excess of his jurisdiction by giving judgment for a sum exceeding the limit of his jurisdiction.

6. The question which arose on this application was whether judicial review was an appropriate remedy, given that there is a right of statutory appeal from a decision of the District Court. Counsel for the Plaintiff has referred me to the case of Ambra Nii on behalf of himself and other members of the Toisap Clan [1991] PNGLR 357 (Woods J.). That decision concerned judicial review of a decision made by a District Court sitting as a Provincial Land Court under the Land Dispute Settlement Act. That Act prohibits appeals. Judicial review was the only remedy available. Therefore the case is not of assistance in determining whether or not judicial review is an appropriate remedy in circumstances where there is a statutory right of appeal, as in the present case.

7. Generally when all that the applicant questions is admissibility of evidence, findings of fact or issues arising from the evidence, there is no jurisdiction by way of judicial review to prescribe for a Magistrate the evidence which he should accept or reject. Those questions would usually be matters for appeal: Jeffrey Lewis v Raphael Appa and David Yaplin N1304 (1995) Salika J.

8. However, the National Court should intervene by way of judicial review where the District Court has made a decision when it clearly lacks jurisdiction or has ignored statutory directions, for the exercise of its jurisdiction, which cause unfairness to the applicant: The State v Rush ex parte Rush; application of Alan Douglas Rush [1984] PNGLR 124, McDermott J.; Robert Lak v Dessie Magaru [1999] PNGLR 572, Sheehan J.; Justin Wayne Tkatchenko v Dessie Magaru (2000) N1956, Sevua J.: Sakawar Kasieng v Andrew Baigry (2004) N2562, Kandakasi J.; Jimmy Mostata Maladina v Posain Polah (2004) N2568 Injia J. and David Kuna v Vincent Eralia (2004) N2771, Cannings J.

9. It is unfortunate that a decision in this matter, which is intended to be a quick review of the facts and law, was delayed because counsel was unable to refer me to these relevant authorities despite an adjournment for written submissions.

10. I am satisfied that there is an arguable case of excessive jurisdiction on the part of the District Court Magistrate and that in the circumstances judicial review is an appropriate remedy.

11. I grant leave to proceed with judicial review.

12. ORDERS:

1. leave is granted to proceed with judicial review;
2. the grant of leave shall operate as a stay of the decision of the District Court;
3. the Plaintiff shall file and serve his notice of motion, all of the affidavits on which he relies, and this order within 21 days of order;
4. the Defendants shall file and serve any affidavits on which they intend to rely within 21 days of service on them of this order;
5. the parties shall file and serve their written extract of submissions within seven days of service of the Defendant's affidavits;
6. the party shall attend before the Listing Judge for further directions on..
   

Napu And Company Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Defendants