Double Field (PNG) Ltd v Iduhu [2022] PGNC 435; N9876 (2 August 2022)

N9876

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 39 OF 2022 (IECMS)

BETWEEN:
DOUBLE FIELD (PNG) LIMTIED
Plaintiff

AND:
KEITH IDUHU as CHAIRMAN OF THE NATIONAL FOREST BOARD
First Defendant

AND:
PAPUA NEW GUINEA FOREST AUTHORITY
Second Defendant

AND:
GREEN HORIZON LIMITED
Third Defendant

Waigani: Dingake J
2022: 2^nd August

JUDICIAL REVIEW – application for leave for judicial review – requirements to be satisfied before the court for leave for judicial review – consideration of – whether the applicant has shown the court that it has satisfied the requirements for leave – requirements for leave satisfied – application for leave granted

Counsel:

Mr. Ian Shepherd, for the Plaintiff

2^nd August, 2022

1. DINGAKE J: INTRODUCTION: This is an application for judicial review pursuant to Order 16 Rule 3 of the National Court Rules (NCR).
2. The Plaintiff seeks the relief specified in its Originating Summons.
3. Notice of Application to apply for judicial review to the Secretary for Justice pursuant to Order 16 Rule 3(3) of NCR has been issued.
4. The Secretary for Justice has been informed that the Plaintiff’s application for leave would be heard today, 2^nd August 2022 at 9:30am, but was not present in Court when this application was moved.

Background

5. The Plaintiff is a holder of Forest Clearing Authority (FCA) 10 – 14 for Maimai Large Scale Integrated Agro Forestry Project, herein after referred to as the “Project”.
6. It is clear from the supporting Affidavit of Hii Yii Luk, that at one stage, on account of the delay to grant the Plaintiff FCA, the Plaintiff commenced proceedings against the Defendants in OS(JR) No. 449 of 2019, which resulted in the National Court, per Gavara Nanu J issuing an Order restraining the Defendants, their servants and agents from granting or attempting to grant a Forest Clearing Authority, timber permit or license with respect to the “Project”.
7. It is apparent from the evidence before me that the Plaintiff’s FCA, issued on the 27^th of September 2019, was cancelled on or about February 2020, without prior notice to the Plaintiff. The said FCA was awarded to the Third Defendant.
8. It is also a matter of record that on the 4^th of November 2021, this Court, per Mirivi j, quashed the decisions of the First and Second Defendants of February 2020, to cancel Plaintiff’s FAC 10 – 14 with respect to the Maimai Large Scale Integrated Agro Forestry Project.
9. The Orders of Miviri J (Annexure ‘M’) to the Affidavit of Hii Yii Luk were served on the Second Defendant.

Requirements for Leave

10. It is trite law that there are four (4) requirements for leave namely:
    • (a) Locus standi
    • (b) Arguable case
    • (c) Undue delay
    • (d) Exhaustion of administrative remedies.
11. To succeed the Plaintiff must establish that it has locus standi, an arguable case, that it has not delayed to bring the application for leave and that it has exhausted administrative remedies.
12. On the evidence before me, I am satisfied that the Plaintiff has the necessary locus standi to bring the contemplated review application by virtue of being a holder of FCA 10 – 14.
13. The decision sought to be reviewed is plainly that of a public body. There is an arguable case as the First Defendant has failed to comply with interlocutory and final orders of this Court with respect to this matter.
14. The Plaintiff became aware of the Third Defendant’s presence within the project area around March 2022 and commenced the current proceedings within the requisite four (4) months period.
15. In my mind, there are no other administrative remedies available to the Plaintiff.
16. In all the circumstances of this case, the Plaintiff has made out a case that it is entitled to be granted leave as prayed.
17. In the premises, the Court makes the follow Orders:
    • (a) Leave of this Honourable Court pursuant to Order 16 Rule 3 of the National Court Rules to review the decision of the First Defendant (or his predecessor) made in or about February 2020 to issue a Forest Clearing Authority No. 10-14 to the Third Defendant with respect to the Maimai Large Scale Integrated Agro Forest Project, is hereby granted.
    • (b) Time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

_______________________________________________________________
Warner Shand Lawyers: Lawyer for the Plaintiff
No Appearance for the Defendants