Magellan Properties Ltd v Tkatchenko [2022] PGNC 448; N9873 (6 July 2022)

N9873

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 692 OF 2018

BETWEEN:
MAGELLAN PROPERTIES LIMITED
Plaintiff

AND:
HON. JUSTIN TKATCHENKO, BEM OL,
MINISTER FOR LANDS AND PHYSICAL PLANNING
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND:
NATIONAL CAPITAL DISTRICT COMMISSION
Third Defendant

Waigani: Dingake J
2022: 14^th February, 14^th March, 20^th April, 2^nd May, 6^th July

JUDICIAL REVIEW- Land Act s.12 & 513 – Compulsory acquisition for declared public purpose – Whether the reason for acquisition can be ignored if ceases to exist.

Case Cited:
Papua New Guinean Cases

Nambawan Super Ltd v Petra Management Ltd (2017) N6748
James Waisime v Auskoa Enterprises Ltd (2019) N7727

Overseas Cases

Associated Provincial Picture House v Wednesbury Corporation (1974) 2 ALL ER 680
Council of Civil Services Unions v Minister for the Civil Service [1983] UKHL 6; 1984 3 ALL ER 935

Counsel:

Mr. Bill Frizzell, for the Plaintiff.
No appearance for the Defendants.

6^th July, 2022

1. DINGAKE J: This is a judicial review application brought by the Plaintiff pursuant to Order 16, Rule 5 of the National Court Rules (NCR).
   
2. When this matter was called for hearing on the 6^th of July, 2022, only the Plaintiff was in attendance and all the Defendants were absent, notwithstanding being duly served with notice that the matter would be heard on the 6^th of July 2022 at 9:30am. There was no explanation why the Defendants were not in Court and the Court proceeded with the trial.
   
3. It would seem from a perusal of the record that the First and Second Defendants have taken no interest in this matter since the proceedings were commenced.
   
4. The Plaintiff and the Third Defendant have agreed that the trial be conducted on the basis of Affidavits contained in the Review Book (RB). They have also agreed that there will be no cross-examination of any deponents.
   
5. At the heart of the dispute between the parties is a piece of land, (Lot 6), described in detail as Allotment 6, Section 53, Granville, Port Moresby NCD, State Lease Volume 28, Folio 6833 previously owned by the Plaintiff but subsequently compulsorily acquired by the First Defendant on or about the 20^th September, 2018, by public notice in the Government Gazette.
   
6. According to the notice in the Government Gazette the land was required for the purposes of drainage easement for discharging of water storm from Stanley Esplanade towards Port Moresby Harbor.
   
7. On the evidence, it seems that the Plaintiff has been the registered proprietor of the aforesaid property since 8^th February 1995.
   
8. It is not in dispute that the Plaintiff had constructed upon the land a two-story office and a warehouse. Adjoining the construction was the Craig’s Wharf.
9. On or about the 14^th of July, 2018, the First Defendant, acting pursuant to Sections 13(1) and (2) of the Land Act caused to be served on the Plaintiff a Notice to Treat. The said Notice contained an endorsement that the Minister instructed the Office of the Valuer General to enter upon and undertake a valuation of Lot 6 and the improvements therein.
   
10. The Plaintiff by letter dated 13^th of July, 2018, responded to the First Defendant’s notice attaching a copy of the valuation undertaken by the Office of the Valuer General on the 19^th of September, 2016, concerning Lot 6.
    
11. It would seem that on or about July/August, 2018, the water storm drainage that was initially planned to run through Lot 6 was subsequently relocated to land adjacent to Lot 6 through Stanley Esplanade to Port Moresby Harbor.
    
12. On or about the 21^st of August 2018, the Plaintiff wrote to the First Defendant, requesting that he should withdraw the Notice to Treat referred to earlier for the reason that the water storm drainage was no longer to be constructed on Lot 6.
    
13. The letter attracted no response from the First Defendant.
    
14. On or about the 6^th of October 2018, the officers of the Third Defendant demolished the buildings on Lot 6 before they were restrained by the Court from doing so.
    
15. Given the above factual background, the Plaintiff prays that the decision of the First Defendant to compulsorily acquire the aforesaid piece of land be quashed and set aside on the grounds that the First Defendant failed to take into account relevant facts or circumstances, namely that the proposed water storm drainage had been relocated and built on the adjacent land, and that therefore Lot 6 was no longer required for that purpose.
    
16. Furthermore, and in the alternative, the Plaintiff challenges the First Defendant’s decision on the basis that the decision to compulsorily acquire Lot 6 was unreasonable in the Wednesbury sense in that no reasonable decision maker would or could in the circumstances have decided that a compulsory acquisition of Lot 6 was required for the stated purpose.
    
17. It is trite law that a decision of public body must be rational and evidence based. To this extent a Court may interfere if it finds that the decision of a public body was not based on relevant considerations or was based on irrelevant considerations (Anisminic v Foreign Compensation Commission (1969) AC 147).
    
18. It is incumbent upon a public body to consider as much information as possible that is relevant to the decision that it is about to make. Deciding what is relevant and what is not depends on the subject matter of the decision. Disregarding a relevant matter is impermissible and may be a basis for a Court to quash a decision of a public body. A decision maker should not pay lip service to a relevant matter. The consideration must be genuine and realistic (Telstra Corporation Limited v Hornsby Shine Council 2006 NSWLEC 133).
    
19. In my mind relevant considerations are mandatory for a decision maker to take into account and cannot be ignored.
    
20. Judicial review may also be available where the administrative body breaches the “Wednesbury principles” and exercises the powers given to it by Statute in an unreasonable manner or arrives at a decision which no reasonable authority would have reached (Associated Provincial Picture House v Wednesbury Corporation (1974) 2 ALL ER 680; Council of Civil Services Unions v Minister for the Civil Service [1983] UKHL 6; 1984 3 ALL ER 935).
    
21. In my mind this is a typical case where an administrative authority fails to take in to account relevant considerations in the exercise of its statutory powers.
    
22. In this case, the reason for compulsory acquisition ceased to exist by virtue of the water storm drainage being constructed on the adjacent land. As a result of the water storm drainage being constructed on the adjacent land the compulsory acquisition should have been discontinued. But this was not to be because the First Defendant ignored a relevant consideration. This is enough to upset his decision.
    
23. In my mind, having regard to my conclusion that the decision of the First Defendant is liable to be quashed for failing to take into account a relevant consideration, it is unnecessary to consider the ground(s) of breach of Wednesbury unreasonableness which in any event overlaps with the ground of not taking into account a relevant consideration in this case.
    
24. The Plaintiff has also pleaded damages occasioned by officers of the Third Defendant from the 6^th – 9^th of October 2018. It is not in dispute that the said officers dismantled and or destroyed buildings belonging to the Plaintiff.
25. The Plaintiff has included the claim for damages, in its Amended Notice of Motion under Order 16, Rule 5, pursuant to Order 16, Rule 3(2) (a) of the NCR.
    
26. I have considered referring the issue of quantum of damages to trial but considered that it would be unnecessary to do so, given the uncontested evidence of Michello Mullo a qualified quantity surveyor who avers that the cost of restoring the destroyed buildings would come to K3,747,671.00.
    
27. I have carefully scrutinized his evidence on damages, and it does not seem unreasonable. As a consequence of Mr. Mullo’s evidence, I will enter judgment for K3,747,671.00 as damages against the Third Defendant together with 2% interest prescribed by the Judicial Proceedings (Interests on Debts & Damages Act, 2015).
    
28. The measure of damages in this case is the costs of restoration or reinstatement. (Nambawan Super Ltd v Petra Management Ltd (2017) N6748, James Waisime v Auskoa Enterprises Ltd (2019) N7727).
    
29. In summation, having regard to the evidence summarized earlier, I am satisfied that the relief sought by the Plaintiff ought to be granted on the ground that the First Defendant’s decision to compulsorily acquire Plaintiff’s land and ignoring to take into account a relevant factor renders the decision he took unlawful and or invalid and of no force and effect.
    
30. In the result, the Court makes the followings orders:
    1. A declaration that the decision of the First Defendant to compulsorily acquire Allotment 6, Section 53, Granville, Port Moresby, NCD, described in State Lease Volume 28, Folio 6833 (“Lot 6”) by public notice published in the National Gazette on 20.09.2018, pursuant to Section 12 (1) of the Land Act 1996 is ultra vires and consequently null and void.
    2. Further or alternatively an order in the nature of certiorari quashing the said decision of the First Defendant to compulsorily acquire Lot 6.
    3. An order in the nature of mandamus compelling the First Defendant to delete any endorsements on the State Lease for Lot 6 concerning the said compulsory acquisition.
    4. An order restraining the defendants, their officers, servants or agents from coming onto, damaging, dismantling, or dealing in any manner whatsoever with the land (including improvements) contained in business lease Volume 28, Folio 6833 being Allotment 6, Section 53, Granville, Port Moresby, NCD.
    5. Damages for loss of improvements on Lot 6, in the amount of K3,747,671.00 against the Third Defendant, together with 2% Interest prescribed by the Judicial Proceedings (Interests on Debts & Damages Act, 2015).
    6. Costs are awarded against the Defendants, such costs to be agreed or taxed.

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