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Adventure Kokoda PNG Ltd v Kilepa [2023] PGNC 488; N10630 (14 December 2023)

N10630


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 43 OF 2023 (IECMS)


BETWEEN:
ADVENTURE KOKODA PNG LIMITED
Plaintiff


AND:
HONORABLE SIMON KILEPA in his capacity as Minister for Environment Conservation and Climate Change
First Defendant


AND:
JULIUS WARGIRAI in his capacity as Acting Chief Executive Officer of Kokoda Track Local-Level Government Special Purposes Authority
Second Defendant


AND:

KOKODA TRACK LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSES AUTHORITY
Third Defendant


Waigani: Purdon-Sully J
2023: 22nd November, 14th December


JUDICIAL REVIEW – Practice & Procedure – Judicial review – where grounds of breach of natural justice and ultra vires upheld – where ground based on Wednesbury principles of unreasonableness dismissed – where proportionality raised – where tour operator licence reinstated - where plaintiff was successful – where plaintiff attempted to resolve matter prior to hearing - costs on solicitor and own client basis


Cases Cited:


Papua New Guinean Cases
Gima v Culligan [2015] N5989
Gobe Hongu Ltd v National Executive Council [2000] PNGLR 372
Iambakey Okuk v Falsheer [1980] PNGLR 274
Ilau v Somare [2007] PGNC 265; N5511
Ipatas v Somare [2010] N4190
Kaiya v Pawa [2015] SC1469
Kamuta v Sode [2006] N3067
Hagoria v Ombudsman Commission of Papua New Guinea [2003] N2400
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Koki v Inguba [2009] N3785
Kunton v Junias [2006] SC929
Malloch v Aberdeen Corporation [1971] 2 All ER 1278
Marat v Hanjung Power Ltd [2014] SC1357.
Nanan v Maru and Police Commissioner [1997] PGNC 6; N1507
Nilkare v Ombudsman Commission (1996) SC498
Ombudsman Commission v Donahoe [1985] PNGLR 348
Ombudsman Commission v Yama [2004] SC747
Re Mopio [1981] PNGLR 416


Overseas Cases
Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948]1 KB 223
Council of Civil Service Unions v Minister for Civil Service [1985] AC 374
Loyd v McMahon [1987] UKHL 5; [1987] AC 625
R v Barnsley Metropolitan Borough Council ex p Hook ([1976] 1 WLR 1052; [1976] 3 All ER 452
R v Home Secretary; Ex parte Daly [2001] 1 AC 532
Secretary of State for Education and Science -v- Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014


Legislation:
Constitution
Order 16 Rule 1 of the National Court Rules


Counsel
B. Sinen, for the Plaintiff
T. Cooper, for the First Defendant
B. Kulumbu, for the Second and Third Defendants


DECISION

14th December 2023


  1. PURDON-SULLY J: INTRODUCTION: This is a substantive application for judicial review made pursuant to a Notice of Motion filed 27 June 2023 pursuant to leave to apply for judicial review granted on 8 June 2023.
  2. The plaintiff seeks the following orders:
    1. An order in the nature of Certiorari pursuant to Order 16 Rule 1(1) of the National Court Rules, to remove into the National Court and quash the decision of the first defendant on 24 April 2023 to cancel plaintiff’s Commercial Tour Operator’s License KTA. 019.
    2. An order in the nature of Declaration pursuant to Order 16 Rule 1(2) of the National Court Rules that the meeting convened by the Kokoda Initiative Committee of 21 April 2023 to consider the proposal to cancel the plaintiff’s Commercial Tour Operator’s License KTA. 019 is invalid and void ab initio and is of no effect.
    1. An order in the nature of Declaration pursuant to Order 16 Rule 1(2) of the National Court Rules that the decision of the First Defendant of 24 April 2023 to cancel plaintiff's Commercial Tour Operator’s License KTA. 019 is invalid and void ab initio and is of no effect.
    1. An order in the nature of a Mandamus pursuant to Order 16 Rule 1(2) of the National Court Rules directing and compelling the second defendant and the third defendant to take all steps necessary to restore the plaintiff’s Commercial Tour Operator’s License.
    2. Such further or other orders as this Honorable Court deems appropriate.
    3. The defendants pay the plaintiff’s costs of an incidental to these proceedings on a solicitor - client basis.
    4. The time for entry of these orders be abridged to the date of settlement by the Registrar, which shall take place forthwith.
  3. During the course of oral submissions the first defendant made a number of material concessions which supported the making of the orders sought by the plaintiff save for Order (d) on the basis that the plaintiff’s licence would have lapsed on 21 June 2023, and the plaintiff should reapply for a new licence. The first defendant further opposes the making of a costs order, other than on a party and party basis.
  4. The second and third defendants seek the dismissal of the plaintiff’s application for judicial review with costs.
  5. At all material times:
    1. The plaintiff was a company duly incorporated since 1 June 2018 with the Investment Promotion Authority conducting the business of trekking expeditions along the Kokoda Track.
    2. The first defendant was the Minister for Environment, Conservation and Climate Change and Chair of the Kokoda Initiative (Ministerial) Committee (KIMC, later called the Kokoda Initiative Committee (KIC)), established by decision number 445/2013 of the National Executive Council to oversee the strategic direction of the Kokoda Initiative under a bilateral relationship between Australia and Papua New Guinea.
    1. The second defendant was the Acting Chief Executive Officer of the third defendant.
    1. The third defendant (referred to in evidence before the court as KTA) was the authority, established pursuant to section 42 of the Local-Level Government Administration Act 1997, responsible for preserving the legacy of the Kokoda Track and promoting trekking and tourism related activities along it.
  6. The fourth defendant, the State, did not participate at the substantive hearing.

MATERIALS RELIED UPON


  1. The plaintiff relies upon:
    1. Notice of Motion filed 27 June 2023
    2. Affidavit verifying Statement pursuant to Order 16 Rule 3(2)(b) of the National Court Rules (NCR) of Charlie Stuart Lynn filed 12 May 2023
    1. Affidavit in Support of Charlie John Stuart Lynn filed 12 May 2023
    1. Affidavit of Charlie John Stuart Lynn filed 15 May 2023
    2. Affidavit of Charlie John Stuart Lynn filed 15 September 2023
    3. Affidavit of Charlie John Stuart Lynn filed 20 November 2023
    4. List of Materials and Authorities dated 21 November 2023
    5. Written submissions.
  2. The first defendant did not file an affidavit, relying upon the affidavit of the second defendant filed on 21 June 2023 and written submissions (as amended orally during the course of the hearing).
  3. The second and third defendants rely upon the affidavit of Julius Wargirai sworn and filed on 21 June 2023 together with written submissions.
  4. I have considered the submissions, oral and written, relied upon. I do not propose to respond to each and every submission made, the parties’ submissions fulsomely canvassed over the course of a day’s hearing. However, in reaching a decision on the issues I am required to determine, I have considered all submissions.

BACKGROUND


  1. The Kokoda Track (the Track) is a walking track located along the Owen Stanley Range that borders Central Province and Oro Province of Papua New Guinea.
  2. It is a place of historical significance for the people of Papua New Guinea and Australia because of the events that took place during the Kokoda campaign in World War 2.
  3. It has been described by the first defendant as ‘our most popular tourist destination’[1] and by the third defendant as ‘a powerful symbol of the enduring relationship between the two countries’.[2]
  4. The Kokoda Initiative is a partnership between the governments of Papua New Guinea and Australia to sustainably develop and protect the Track, the surrounding Owen Stanley Range, and the local communities along it.
  5. The five key goals of the joint understandings that underpinned the vision of the Kokoda Initiative are:[3]
  6. The governance structure of the Kokoda Initiative includes the KIC and the third defendant.[4]
  7. The KIC (then known as the KIMC) was established on 9 December 2013 to improve the governance system of the Kokada Initiative by way of a ministerial committee supported by an advisory panel to take submissions from and provide advice and strategic direction to stakeholders and ensure that agencies were properly resourced to carry out the mandate under the Kokoda Initiative. Its membership comprises the first respondent as Minister of the lead department, other relevant Ministers and the Governors of Oro and Central Provinces.[5]
  8. The KIC meets quarterly and reports to the Prime Minister.
  9. The governance structure of the third defendant involves the second defendant as CEO undertaking the day to day operations of the third defendant. Management oversight is to be provided by the third defendant’s Management Committee or Board which is required to meet quarterly, have a Chair, Deputy Chair and at least three (3) members to constitute a quorum (none of whom can be an employee of the third defendant). That body may include a tourism operator on nomination by the Chair. It is unchallenged that there is no functioning board or committee in existence. It is unclear on the evidence whether one was ever established and if it was, when it last met and consequently who, in its absence, provides oversight of the operations of the third defendant or the second defendant as its Acting CEO. It presents as a lacuna in the governing structure as outlined.
  10. Sections 2 and 3 of the Kokoda Track Local-Level Government Special Purposes Authority Constitution details the functions and powers of the third defendant as follows:

2. Functions of the Authority

“Without limiting any functions of the Authority set out in the Proclamation, the Authority may perform the following additional functions:

(a) To preserve the legacy of the Kokoda Track;
(b) To promote tracking and tourism related activities along the Kokoda Track;
(c) To consult with the landowner and Local Level Government on their needs and priorities in relation to distribution of any benefits arising from trekking and other tourism related activities on the Kokoda Track;
(d) To collect and manage trekking fees and permits;
(e) To oversee and regulate the conduct of tour operators to ensure the sustainable management of the Kokoda Track and respect for local culture and way of life;
(f) To administer, facilitate, oversee and assist the implementation of community development projects along the Kokoda Track corridor, either alone, through government agencies or in collaboration with philanthropic organizations, donor agencies and other interested persons;
(g) To work in close cooperation and consultation with the Papua New Guinea and Australian Governments for the implementation of the Second Joint Understanding between Papua New Guinea and Australia on the Own Stanley Ranges, Brown River Catchment and Kokoda Track Region.
(h) Any other functions authorized by the Koiari Rural Local-Level Government or the Kokoda Rural Local-Level Government from time to time.

3. Powers of the Authority

(1) In accordance with Section 44 of the Local Level Government Act 1997, the Authority has the power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions.
(2) Without limiting subclause 1, the Authority may –
  1. Set and impose fees on tourism operators and trekkers using the Kokoda Track;
  2. Issue trekking permits for the Kokoda Track;
  1. Enter into agreements and commercial arrangements; and
  1. Acquire, hold, and dispose of real and personal property.
  1. It is a specific responsibility of the third defendant to regulate trekking operations on the Track and to provide a safe and well managed Track with trekking fees to be used in part to undertake safety and track maintenance works.[6].
  2. Under the Kokoda Track Permit Law 2005 any individual or company who wants to walk the Track is required to obtain a trek permit. Pursuant to that law:
    1. permit fees are as prescribed in section 6;
    2. a trekker without a permit shall be required to return to the office of the third defendant or approved licencee or authorised agent or officer of the second defendant and make arrangements for the payment of such a permit, “plus any imposed penalty” (s 9);
    1. subject to sections 6 and 9 a person without a permit who attempts to walk the Track is guilt of an offence (Penalty: a fine not exceeding K100).
  3. The published guidelines for trekking the Track provide, amongst other things, that it is a legal requirement that prior to trekking, all trekkers have a valid permit obtained from the second defendant or tour operator.
  4. Trek permits are available on application to the third defendant.
  5. Trek permits will only be issued to tour operators who have a licence, variously called a Commercial Operator’s Licence or Tour Operator’s Licence (licence).
  6. The Kokoda Track Authority Commercial Operators License Conditions 2012 and 2014 provide that the power to grant and cancel tour licences is vested in the second and third defendants.
  7. The licence is signed by the second defendant. It must be renewed annually on application to the third defendant.
  8. Tour operators agree to a Code of Conduct which is annually reviewed and monitored by the third defendant. The Code inter alia requires tour operators to adhere to second defendant’s rules, guidelines and procedures, support local communities, promote excellence in terms of the trekkers experience and exercise a duty of care to clients and staff.
  9. The plaintiff has held a licence since 23 August 2018. Mr Charlie Lynn OAM, a Director of the plaintiff company, deposes to having first trekked the Track in 1991 and, as a tour operator, having led 600 Kokoda expeditions and 7,000 trekkers over the Track.
  10. On 21 June 2022 the plaintiff was issued its annual licence with an expiry date of 21 June 2023. [7]
  11. On 21 April 2023 the KIC convened a meeting at the Hilton Hotel following a request of the second defendant. On the evidence of the second defendant he sought advice from the KIC ‘on my intention to exercise my powers under the KTA Constitution to cancel the plaintiff’s tour operator’s licence.’ [8]
  12. The purpose of the meeting as recorded in the Minutes of the meeting in evidence was to consider inter alia illegal trekking conducted by the plaintiff.[9]
  13. The plaintiff was not informed of the meeting, nor the intention of the second defendant prior to the meeting, to exercise his powers to cancel the plaintiff’s licence.
  14. By letter dated 24 April 2023 addressed to Ms Tracie Watson, the plaintiff’s General Manager, the plaintiff was notified by the first defendant as Chair of the KIC that its licence was cancelled.[10] Relevantly the letter said:

Given the evidence presented at the meeting by Mr Wargirai the Kokoda Initiative Committee has instructed the KTA CEO to cancel Adventure Kokoda’s Tour Operator licence effective from the date of this letter.


  1. The first defendant went on to outline the conditions the plaintiff would be required to meet for the granting of a new licence.

EVENTS PRECEDING CANCELLATION OF LICENCE


  1. On 2 February and 10 February 2023, Mr Lynn sent several emails to the second defendant raising safety concerns about the Track noting inter alia that:
  2. It was his proposal that, to ensure the readiness of the Track to accommodate the large number of confirmed bookings during the approaching peak Anzac season, his trekking fees be redirected to the campsite owners to enable them to prepare and effect improvements to the campsites to meet the basic hygiene and safety needs of its trek groups and that the plaintiff provide the third defendant with a detailed record of its expenditure
  3. The plaintiff received no response to these emails and its concerns, from its perspective, remained unresolved.
  4. By further email dated the 13 March 2023 the plaintiff again raised its concerns with respect to inter alia:[11]
  5. The plaintiff again proposed that it use a portion of its trek fees, normally payable to the third defendant, to offset the additional expenses with the balance to be paid to campsite owners as per a list provided so they could undertake necessary improvements for the benefit of the plaintiff and their clients. The penultimate paragraph of the email concluded that if the plaintiff did not receive a response within 48 hours it would assume that the third defendant agreed with its proposal and act accordingly.
  6. On 20 March 2023, the second defendant responded by letter as follows:[12]

Dear Charlie

Ref: Probe Kokoda Trail Claims, says Former Australian Soldier

I refer to your article in The National and Post Courier Publications dated 13th March 2023.

From the outset, let me remind you that Kokoda Track Authority is a legal Authority established by the Government of Papua New Guinea under Section 42 of the Local Level Government Administration Act 1997 (refer to attachment). KTA’s statutory mandate is to manage the Kokoda Track as a commercial asset for both local and international tourists on behalf of Koiari and Kokoda Local Level Governments.

Also, let me draw you to KTA’s Constitution in Clause 3 (2)(a)(b), which empowers KTA to impose fees on Tourist Operators and Trekkers and issuance of Trekking Permits to Tourism Operators and Trekkers using the Track (refer to Attachment). In light of these provisions, your intention not to pay Trek Fees direct to KTA and instead distribute direct to the campsite owners through other interest groups not legitimized by law to administer these powers and functions would constitute a breach of these provisions and considered an illegal act on your part. Further, as foreigner investing in PNG, you are subject to abide by PNG Laws, and NOT undermining them as you intentionally threatened in your article.

KTA is the legitimate Authority and I suggest you adhere to the legal requirements in making proper payments of Track Fees to it, just as you always do in past years. On the track facilities and improvement of welfare of Porters and Guides, I do agree with specific concerns of your claims, however some of these responsibilities are outside KTA’s core functions. It is therefore important for KTA to work together with relevant agencies, Guest House Owners and Tour Operators to ensure we achieve better outcomes in the short and long term according to expected requirements.

You are therefore invited to be part of this effort instead of merely talking from the side and publicly making misleading allegations on KTA and partner agencies on the issues.

Thank you

Julius Wargirai

Acting Chief Executive Officer

Kokoda Track Authority


  1. On 27 March 2023, Mr Lynn sent a further email to the second defendant reiterating his concerns noting that:[13]
  2. Mr Lynn concluded by seeking the third defendant’s ‘endorsement’ to the plaintiff paying one half of its trek permit fees for the Anzac trekking period in April to the Kokoda Trail Tourism Development Association which represents landowners on the track to assist them in protecting the rights of the traditional village communities and half to the campsite owners to provide them with the funds to meet the basic needs of trekkers in the short time available.
  3. The plaintiff received no response to that communication.
  4. Seemingly undaunted, on 9 April 2023, Mr Lynn sent a follow up email to the second defendant again raising earlier safety concerns, this time supported by a report he had received from the plaintiff’s track leader regarding the condition of the Track including rotting bridges, bridges over main creeks washed away necessitating the use ropes, campsite owners having received no financial assistance to prepare campsites including toilets and enclosing photographs of dangerous sections on the northern decent from Brigade Hill.[14]
  5. He concluded as follows:

We would therefore appreciate your approval for the Kokoda Trail Tourism Development Association (KTTDA) to be the management body responsible for the receipt and expenditure of the trek permit fee including as a matter of urgency....

The President of the KTTDA... will then be in a position to allocate some funding for urgent trail maintenance and give the campsite owners a ray of hope.


  1. The plaintiff received no response to that communication.
  2. On Friday 14 April 2023, a trekking group led by Mr Lynn arrived at Owers Corner for a scheduled trek to Kokoda. Mr Lynn gives evidence that he informed the third defendants’ rangers who were on site that payment of the trek permit fees would be made directly to the campsite owners to enable them to carry out maintenance on the trail and the campsites. It is clear he had no authority to do that. It is unchallenged that he then led a trek without having paid the trekking fees.
  3. On Saturday 15 April 2023, the second defendant arrived at Owers Corner and requested that the permit fees be paid to him. The plaintiff’s Manager, Mr Donald Watson, met with the second defendant and presented him with two cheques, totalling K22,225, being the trek permit fees for two trekking groups on 14 and 15 April 2023.
  4. On Sunday 16 April 2023, the plaintiff’s Logistics Manager, Mr Tau Magui, presented the second defendant with two more cheques, totalling K18,900, for the two trekking groups of the 16 and 17 April. All four cheques were dated 11 April 2023. They were not banked until Monday 17 April 2023 at which time the plaintiff was issued four receipts dated 17 April 2023 totaling K41,125 being the payments of the trek permit fees for the 14, 15, 16 and 17 April.
  5. Four days later the KIC convened its meeting at the request of the second defendant. On 26 April 2023, the plaintiff received an email from the second defendant attaching the letter dated 24 April 2023 from the KIC notifying the plaintiff of the cancellation of the plaintiff’s licence effective as at the date of the letter. [15]
  6. The letter is outlined hereunder in full, with underlining added for discussion purposes:

Dear Ms Watson


CANCELLATION OF ADVENTURE KOKODA KTA TOUR OPERATORS LICENCE


I am writing to you as the Chairman of the Kokoda Initiative Committee which is invested by the PNG Government to oversee the strategic direction of the Kokoka Initiative and PNG’s bilateral relationship with Australia under this Initiative. On Friday 21st April I called a meeting of the Committee to consider reports of four treks conducted by your company Adventure Kokoda.


My Committee heard very disturbing reports from the Acting CEO of the Kokoda Track Authority, Mr. Julius Wargira, that on four occasions recently Adventure Kokoda deliberately attempted to evade payment of trekking permit fees to the KTA as required under PNG Law. The treks in question were:


Friday 14th April trek from Ower’s Corner to Kokoda lead by Mr. Charlie Lynn and Mr. Graig Moffat,

Saturday 15th April trek from Ower’s Corner to Kokoda lead by Mr. Reg Yates,

Sunday 16th April trek from Kokoda to Ower’s Corner lead by Mr. Scott Babington, and

Monday 17th April trek from Kokoda to Ower’s Corner lead by Mr. Peter Morrison.


The Committee heard that prior to these treks in
February this year Mr. Lynn wrote to the KTA informing the CEO that Adventure Kokoda would refuse to pay the trekking permit fees to KTA. Mr. Wargirai informed us that he replied to Mr. Lynn in writing and informed him that to do so would be considered unlawful, as the KTA is mandated under law as the rightful authority to which trekking permit fees must be paid.


The Committee further heard that the first trek headed by Mr. Lynn arrived at Ower’s Corner without any prior application for permits, or any prior notification to the KTA, and announced to the KTA ranger that they were about to depart for Kokoda without the lawful KTA trekking permits. The ranger was informed that permit fees would be paid to another organization, the Kokoda Trail Tourism Development Authority (KTTDA), which is not authorized under law to charge or collect trekking permit fees for the Kokoda Track.


Despite being previously warned in writing by the CEO, and again by the KTA ranger at Ower’s Corner, the Mr. Lynn lead the trek onto the Kokoda Track after continual refusals to pay KTA trekking permit fees. This action was attempted again on further three occasions as noted above. The Committee acknowledges that eventually and after much confrontation Adventure Kokoda did pay KTA through the issuance of cheques, but the fact remains that all four groups commenced trekking without the requisite trekking permits, despite repeated warnings.


The Kokoda Initiative Committee is very disturbed by these deliberate and calculated actions to contravene PNG Law. Adventure Kokoda is registered as a foreign entity by the Investment Promotion Authority and we are disturbed that a foreign company has openly declared in writing and in its actions that they were willing to take unlawful acts. The Committee was further disturbed to hear that Adventure Kokoda was attempting to operate business with the KTTDA, knowing that the KTTDA has no legal authority over the Kokoda Track.


There was a very vigorous discussion within the Committee of the pre-meditation of these actions and the disregard of PNG’s sovereignty, with consideration given to precedents being set that would totally disrupt and undermine the Kokoda trekking industry. Given the evidence presented at the meeting by Mr. Wargirai the Kokoda Initiative Committee has instructed the KTA CEO to cancel Adventure Kokoda’s tour operator licence effective from the date of this letter.


Please therefore be informed that as of this date, Adventure Kokoda is not licenced to operate any trekking business on the Kokoda Track. Should Adventure Kokoda wish to continue to do business in this country, your company many apply for a new licence to be granted on the following conditions;


1. Adventure Kokoda must pay a fine of K100 per trekker to the KTA as required by law.

2. Adventure Kokoda must agree in writing that they will abide by all PNG laws, and follow all lawful directions by KTA officers and other PNG officers,.

3. Adventure Kokoda must provide assurances that they will not get involved in local PNG politics or to incite local political action.


The Kokoda Initiative Committee has asked to be kept informed of the situation, and have instructed the KTA CEO that no new licence will be issued to Adventure Kokoda until instructed by my Committee. I have been informed that the Royal PNG Police have been notified of this situation, and I expect that Adventure Kokoda and the trek operators named above will cooperate fully with the investigation.


The Committee acknowledges the contribution Adventure Kokoda makes to the local economy through employment and other works, and also acknowledges previous remarks and comments from Mr. Charlie Lynn and his views on how the trekking industry could be improved. But the Committee was firmly of the view that these things gave no justification for Adventure Kokoda to evade paying trekking permit fees in contravention of PNG sovereign law.


  1. The letter was signed by the first defendant and copied to all members of the KIC, the second defendant, Mr Eric Mossman, CEO of TPA, Mr Jude Tukuliya, Acting MD CEPA and Hon John Philps, Australian High Commissioner.
  2. The plaintiff denies there was an attempt to evade the payment of trekking fees.
  3. The plaintiff contends that the first defendant’s decision to cancel its license was unlawful, unreasonable and in breach of the principles of natural justice.
  4. On 12 May 2023 the plaintiff initiated proceedings for leave for judicial review. Leave was granted by a Judge of this court on 8 June 2023.
  5. On 27 June 2023 the plaintiff filed its substantive Notice of Motion. The matter proceeded to a hearing on 22 November 2023.

THE ISSUES


  1. The issues for determination are:
    1. whether the plaintiff’s license was unlawfully cancelled and, if so, whether the court should in addition to an order quashing the decision to cancel the license, grant the declarations sought and make an order in the nature of mandamus for the second and third defendants to reinstate the licence; and
    2. what costs order should be made, the plaintiff seeking an order on a solicitor and own client basis and the first, second and third defendants seeking the order be made on a party and party basis.

GROUNDS


  1. The plaintiff seeks review of the decision of 24 April 2023 to cancel its licence on four grounds:
    1. Beach of Natural justice
    2. Ultra vires
    1. Wednesbury principles of unreasonableness
    1. Breach of s 41 of the Constitution.

LEGAL PRINCIPLES


  1. Order 16 Rule 1 of the National Court Rules provides:

(1) As application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Oder.


(2) An application for a declaration or an injunction may be made by way of an application

for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to –


(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari; and
(b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and
(c) all the circumstances of the case,

it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.


  1. Judicial review is a process that is available to hold public officials accountable for the correct use of their powers. It is not concerned with the decision itself but with the integrity of the decision-making process.[16]
  2. Judicial review is available where the decision-making authority exceeds it powers or lacks jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable authority would have reached (Wednesbury principles) or abuses it powers.[17]
  3. Breach of natural justice is a common law ground as well as a constitutional law requirement. Section 59 of the Constitution allows for the consideration of the principles of natural justice in judicial and administrative proceedings, with the minimum requirement of natural justice stated to be “the duty to act fairly and in principle to be seen to act fairly” (s 59(2)).
  4. In Koki v Inguba [2009] N3785 Yalo AJ said at [4]:

It is quite unique in our jurisdiction as to how we have valued and recognized the importance of fairness or the principles of natural justice. Firstly, we have adopted the common law principles of natural justice as our underlying law. Secondly, the principles of natural justice are ensured all throughout our statutes. As if these were inadequate, we have provided for it in our Constitution at section 59. Above all these, the Constitution has laid down the minimum standard of the principles of natural justice. We have provided for fairness at all levels of the hierarchy of laws in our jurisdiction. So, there is an onerous obligation to observe the minimum standard of the principles of natural justice.


  1. What is fair will differ from case to case, the principles of natural justice “not engraved on tablets of stone”.[18] The principles have a broad expanded meaning, and the scope and ambit of the principles are never limited.[19]
  2. The duty to act fairly and be seen to act fairly requires the decision-making process to be procedurally fair to the person whose rights, interests and legitimate expectations are affected by its decision.[20]
  3. The ultra vires grounds of judicial review are found in Order 16 Rule 13 of the NCR. If the decision-maker’s power is not properly exercised inter alia by reason of a lack of jurisdiction then the exercise may be struck out because it is unlawful.[21]
  4. Whilst as noted earlier, judicial review is not concerned with the decision, but the decision-making process, the exception, referred to as the Wednesbury principle, is where the decision is so unreasonable or absurd having regard to the circumstances, that no reasonable decision maker could have made the decision. [22]
  5. Proportionality is a requirement that a decision be proportionate to the aim it seeks. It does not question the objective, or the end sought, rather it alleges that the means of achieving the objective was in excess of what was necessary to bring the intended result.[23] It has a constitutional mandate under s 41(1)(b) of the Constitution, which says amongst other things an act is unlawful if it is disproportionate to the circumstance of the case. There is an issue however whether s 41 only affects private rights and not public rights and interests.

DISCUSSION


  1. Based on the above principles I shall now address the four grounds raised by the plaintiff as a basis for the relief sought.

Natural Justice


  1. It is submitted on behalf of the plaintiff that the decision to cancel its licence breached the principles of natural justice because:
    1. In breach of s 59(2) of the Constitution, the first defendant failed to provide an opportunity to the plaintiff to answer the allegations raised against it by the second defendant, the deliberation and decision to cancel the plaintiff’s license based solely on the second defendant's account.
    2. The track permit fees the subject of the second defendant's allegations were already paid in full and further to that, there were no penalty fee imposed by the second defendant at the time when he accepted the payments.
    1. The KIC Meeting convened on 21 April 2023 was not free from bias and conflicts of interest given the presence of Hon Gary Juffa and Mr Mark Nizette, the latter, at the time engaged in defamation litigation involving the plaintiff’s director Mr Lynn.
  2. It is submitted on behalf of the second and third defendants that there was no breach of the principles of natural justice prior to the licence cancellation, that it would be absurd and ridiculous to assert that the plaintiff was not afforded an opportunity to be heard when the plaintiff was very much involved in the events leading up to the cancellation of its licence as there was ongoing communication between the plaintiff and the defendants concerning the issue of trekking permit fees, the decision to cancel the licence did not come as an abrupt shock to the plaintiff as the plaintiff was engaged in an ongoing dispute with the defendants over the payment of fees and had been informed of the legal requirement to pay trekking fees to the third defendant which it ignored by knowingly contriving to take four separate trekking groups onto the Kokoda Track without paying the lawful trekking permit fees to the third defendant, its actions premeditated in that it had been planned for at least two months.
  3. The submissions on behalf of the second and third defendants, respectfully, conflate two different issues. The dispute over how trekking fees were to be paid and the plaintiff’s failure to pay trekking fees (on the case of the second and third defendants) was one issue. The plaintiff’s right to be forewarned and heard prior to the cancellation of its licence, was another issue.
  4. The first issue did not entitle the defendants to ignore affording the plaintiff procedural fairness in the decision-making process to cancel its licence, which included the right of the plaintiff to be heard unless the rules of court or express provision of an Act of Parliament excluded that right.
  5. The KIC was at liberty to take submissions from a range of stakeholders, including licenced tour operators, to ensure that ‘considered advice’ was passed onto relevant agencies such as the third defendant (see Policy Submission to Cabinet at [17] and Terms of Reference of KIC at page 8 being Annexure K to the affidavit of the second defendant filed 21 June 2023). It did not invite those submissions from the plaintiff before it made the decision that cancellation was the proper course of action.
  6. It may be that had the plaintiff been afforded that opportunity that the outcome would have been the same, that is cancellation of the licence. However, the right to prior notification, the right to be heard, the right to try and reach consensus if possible as part of the right to be heard, is a fundamental right the plaintiff was denied. It included, but was not limited to:
  7. The communications between the parties and the interchange on the Track on or about 15 April 2023 do not lead to a contrary conclusion. The one and only letter sent by the second defendant to the plaintiff on 20 March 2023 concluded by urging cooperation through joint effort. The plaintiff could not have reasonably drawn from it or the April exchanges with the second defendant and/or the third defendant’s agents that cancellation of its licence was under active consideration or a likely consequence of the dispute, a view likely underscored by the failure of the second or third defendant to impose a pecuniary penalty on the plaintiff following its trek of 14 April.[26] Even if it was reasonable to draw that inference it did not disentitle the plaintiff from being heard between 17 and 21 April 2023 when the decision to cancel was made.
  8. The unsigned KIC Meeting Minutes dated 21 April 2023 annexed and marked as Annexure “I” to the Affidavit of the second defendant filed on 21 June 2023 reveal inter alia that:
    1. none of the plaintiff’s representatives were present at the KIC meeting when the second defendant raised allegations of attempted evasion of trek permit fees, an allegation denied by the plaintiff;
    2. the second defendant did not provide a written submission to the KIC outlining his allegations against the plaintiff, nor any of the written communications passing between the plaintiff and second defendant to provide some contextual background to the dispute;
    1. the KIC and the first defendant failed to consider that the trek permit fees were paid in full, or, at best on the defendant’s case, four days late.
  9. There is no provision under the Constitution of the third defendant or the Proclamation establishing the third defendant which expressly states or excludes the principles of natural justice. The court is thus at liberty to supply the principles by implication.[27]
  10. The right to be heard is a fundamental right, one enshrined in s 59(2) of the Constitution.[28] The actions of the defendants deprived the plaintiff of its right to defend itself against the complaints raised, before the decision was made to cancel its licence. The KIC only heard one side of the story, as recounted to it by the second defendant. It did not in its deliberations ascertain the objective facts and fairly listen to both sides of the argument. That failure represented a serious breach of the principles of natural justice. [29]
  11. The submissions on behalf of the second and third defendants that the plaintiff’s complaint in this regard was inter alia absurd, ridiculous, or trivial cannot, respectfully, be accepted.
  12. In Malloch v Aberdeen Corporation [1971] 2 All ER 1278, Lord Reid said at [p1282 j]:

The right of a man to be heard in his defence is the most elementary protection of all....


  1. In Ilau v Somare [2007] PGNC 265; N5511 Canning J echoed those sentiments when he said at [66]:

The right to be he heard of any person is special – something to be cherished in a society built on principles of fairness, decency, and democracy. That is the sort of society PNG is supposed to be. That is what the National Goals and Directive Principles are all about.


  1. During the course of submissions Counsel for the first defendant effectively conceded that the plaintiff was not afforded an opportunity to be heard. It was the defendants’ individual and collective failure to afford the plaintiff that right and, as a consequence, a process of inquiry and consideration that was fair, just and reasonable that individually and collectively amounted to a fundamental error of law. It was a serious breach of the principles of natural justice entitling the plaintiff to succeed on its application on that ground alone.

Bias


  1. The duty to act fairly and to be seen to act fairly as provided by s 59(2) of the Constitution, implies an absence of bias on the part of the decision-making body. If the decision-making process is tainted in some way by a lack of independence or impartiality or bias, then it may amount to a breach of the principles of natural justice.
  2. The duty to act fairly includes declarations of any conflicts of interest, where necessary, to uphold that duty.
  3. On the evidence of the plaintiff, a member of the KIC, the Governor of the Northern Province Hon Gary Juffa, and the Secretariat, Mr Mark Nizette, both of whom were present at the meeting on 21 April 2023, were in a position of conflict.
  4. On the evidence of Mr Lynn there had been an earlier dispute with Mr Juffa over a charter plane. Further, on his evidence, Mr Nizette had instituted defamation proceedings against him on 21 December 2022 in an Australian court. That evidence was not challenged by the second defendant or by an affidavit from Mr Juffa or Mr Nizette.
  5. On the evidence of the second defendant Mr Juffa had sent a message to Mr Lynn on 15 April 2023 advising him to comply with PNG laws and not walk the Track, which Mr Lynn then purportedly ignored, denied by Mr Lynn.
  6. There is no evidence before the court that either Mr Juffa or Mr Nizette declared to the Chair of the KIC that their involvement in the meeting may give rise to a potential conflict of interest. The Minutes of the meeting do not disclose any such declaration. The Minutes ievidence an active involvement of Mr Juffa in the discussion. They also evidence Mr Nizette being invited to provide an overview of the history of the Kokada Initiative and its funding.
  7. Further, the letter from the KIC signed by the first defendant and conveyed through email dated 26 April 2023 from the second defendant to the plaintiff was copied to Mr. Nizette. That may be because he was the Secretariat, however it is trite law to say that a failure to declare a conflict of interest may give rise to a reasonable apprehension of prejudice, partiality, or prejudgment and that any person who is part of a decision-making process must not have any personal interest in the outcome of the decision.[30]
  8. It is also trite to observe that it would offend the principle of fairness and amount to a breach of natural justice if a person who was engaged in litigation against a director of the plaintiff company did not disclose that interest before participating in any decision that may adversely impact the interests of that person.
  9. Whilst the court does not suggest that either the involvement of Mr Juffa or Mr Nizette suggested actual bias by either, bias does not have to be real or actual. It can be imputed or apparent. Given the state of the evidence, the lack of any declaration of a potential conflict in the Minutes thus enabling the KIC to determine how that should be addressed, amounted to a lack of fair treatment to the plaintiff. It is a duty that is constant, one that in the circumstances tainted the advisory process thus amounting to a breach of natural justice.

Ultra Vires


  1. It is contended on behalf of the plaintiff that in addition to the breach of the principles of natural justice, the first defendant acted ultra vires in exercising a discretionary power that was exclusively vested in the third defendant pursuant to sections 2 and 3 of the third defendant’s Constitution. In acting outside its powers, its decision to cancel the plaintiff’s licence should be declared invalid.
  2. It is contended on the part of the second and third defendants that the decision cancelling the plaintiff’s licence was not made ultra vires as the KIC was permitted to be involved in the decision-making process relating to the license cancellation matters and, in this instance, it was permitted to advise the second defendant to cancel the plaintiff’s license..
  3. The court agrees that the second defendant on behalf of the third defendant had the authority to seek advice. It also agrees that the first defendant had the authority to provide that advice. The first defendant, however, had no authority to cancel the plaintiff’s licence. That authority rested with the third defendant.
  4. The fact that at the relevant time the third defendant did not have a functioning board or management committee to provide advice and make a decision is, respectfully, irrelevant to the issue of the first defendant’s authority to cancel and set the terms for future renewal. It was a circumstance that did not create or transfer to the first defendant the authority of the third defendant.
  5. The decision of the first defendant to cancel the licence and then impose conditions for its renewal, including the requirement of approval by the KIC and first defendant of any renewed application, a power and function that vested lawfully elsewhere, was ultra vires its authority.
  6. This ground is upheld.

Wednesbury Principles of unreasonableness


  1. It is contended on behalf of the plaintiff that the first defendant’s decision was unreasonable in the Wednesbury sense for the following reasons:
  2. Based on the forgoing, the plaintiff submits that the first defendant’s decision was unreasonable in the Wednesbury sense.
  3. Counsel for the second and third defendant did not address this ground in any detail, the thrust of its submissions being that the plaintiff is not entitled to any of the equitable reliefs sought as it does not come to court ‘with clean hands’, by reason of it illegal and improper conduct leading up to the cancellation of its licence, such that the court should scrutinize that conduct as the plaintiff is not an innocent party.[31]
  4. The principle of reasonableness of the decision was developed in the English case of Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948]1 KB 223 at [230], the principle enunciated by Lord Greene MR in the frequently quoted passage:

The exercise of a discretion must be real, matters which ought to be considered must be conversely irrelevant collateral matters must be disregarded. Where the discretion is exercised within the ambit of considering what is relevant the court cannot intervene, except where the conclusion nevertheless reached is so unreasonable, "... in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether.


  1. In Council of Civil Unions v Minister of Civil Service [1985] AC 374 Lord Diplock classified unreasonableness under irrationality saying that the decision would be irrational if it was “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to it could have arrived at it.”
  2. The test under the Wednesbury principle is a high one and it will apply to only a limited class of cases.[32] It is a test, respectfully, that the plaintiff has not met on the facts of this case. In so concluding I acknowledge that the question can be one of degree and that in the exercise of its function to advise, the first respondent did not accord the plaintiff natural justice and exceeded its powers which raise considerations of reasonableness. However, the facts of this case do not permit a conclusion that the decision of the first respondent was so outrageous as to defy logic such as to meet the test of unreasonableness in the Wednesbury sense.
  3. This ground is not upheld.

Breach of s 41 of the Constitution


  1. With respect to this ground, whilst the courts in England have adopted proportionality as an independent ground of review and have found that the court can interfere by certiorari if a punishment is altogether excessive and out of proportion to the occasion,[33] in this jurisdiction there is a controversy on the authorities as to whether proportionality is an independent ground of judicial review and whether s 41 only affects private rights and not public rights and interests.
  2. Counsel for the plaintiff referred the court to the decision of the Supreme Court in Marat v Hanjung Power Ltd [2014] SC 1357. Counsel for the defendants advanced no submissions to assist the court. In Marat there was no conclusion on the matter. In light of my earlier findings which uphold two grounds of review, it is controversy on which I need not engage.

CONCLUSION


  1. I am satisfied that the decision of the first defendant of 24 April 2023 to cancel the plaintiff’s Commercial Tour Operator’s License KTA. 019 was made ultra vires such that the decision should be quashed.
  2. I am further satisfied that it would be just and convenient for the reasons given that the declaratory orders sought by the plaintiff be granted, namely:
    1. that the meeting convened by the Kokoda Initiative Committee of 21 April 2023 to consider the proposal to cancel the plaintiff’s Commercial Tour Operator’s License KTA. 019 is invalid and void ab initio and is of no effect; and
    2. that the decision of the first defendant of 24 April 2023 to cancel plaintiff's Commercial Tour Operator’s License KTA. 019 is invalid and void ab initio and is of no effect.
  3. With respect to whether the court should make Order 4 in the Notice of Motion, namely an order in the nature of mandamus compelling the second and third defendant to restore the plaintiff’s license, I propose to make that order. The plaintiff’s licence was cancelled unlawfully. It occurred in the context of an appreciation on the part of the first defendant and the second defendant acting on behalf of the third defendant, of the importance of upholding the laws of Papua New Guinea. The defendant’s breach of the principles of natural justice in their dealing with the plaintiff was a serious breach of principles that find their expression in the country’s Constitution. The principles are not feel-good platitudes. They are principles upon which a democratic society such as Papua New Guinea conducts its affairs, and which the framers of the Constitution viewed as sufficiently important to include in the country’s founding document. They are principles to which all citizens and government authorities must adhere.[34] The evidence, and the submissions advanced on behalf of the second and third defendants, suggest a lack of appreciation of the importance of adherence to a basic principle of fairness, namely the right to be heard. The cancellation of the plaintiff’s licence, one that had been renewed annually by the third defendant since 2018, directly impacted the plaintiff’s right to conduct its business, a circumstance clear on the second defendant’s own evidence.[35] It is not an answer on the part of the second defendant that the plaintiff had demonstrated an ability to make alternative arrangements for its prior bookings by way of transfers to other trekking companies. The plaintiff’s efforts to deal with the consequences of the abrupt cancellation of its licence, without being heard, may have had no impact on the 126 trekkers who continued to walk the Track or the continued employment of 306 porters. It did however result in the 126 trekkers doing so with a tour operator they had not selected and, by reasonable implication, a resultant loss of revenue to the plaintiff from the eight (8) treks so transferred.
  4. With respect to costs, the defendants should pay the plaintiff’s costs on a solicitor client basis. The plaintiff has been wholly successful in the orders it sought. It sought to resolve this matter by letter to the Office of the Solicitor General dated 28 August 2023 on the basis that it would abandon the orders by way of mandamus and certiorari in its Notice of Motion if there was agreement to the declaratory relief with respect to the issues of ultra vires and natural justice, grounds on which it was ultimately successful. The lawyer for the first defendant was copied in on the letter. The plaintiff deposes to receiving no response at the date of the swearing of Mr Lynn’s further affidavit on 5 September 2023. There is no evidence to the contrary. Further, following the concessions made at trial on behalf of the first defendant - a circumstance that presented an obvious difficulty for the case the second and third defendant sought to maintain, the court suggested the matter be stood down for discussions. That was rejected by Counsel for the second and third defendants who requested that the court hand down a decision.

ORDERS


  1. I make the following orders:
    1. An order in the nature of certiorari pursuant to Order 16 Rule 1(1) of the National Court Rules, to remove into the National Court and quash the decision of the first defendant on 24 April 2023 to cancel plaintiff’s Commercial Tour Operator’s License KTA. 019.
    2. An order in the nature of a declaration pursuant to Order 16 Rule 1(2) of the National Court Rules that the meeting convened by the Kokoda Initiative Committee of 21 April 2023 to consider the proposal to cancel the plaintiff’s Commercial Tour Operator’s Licence KTA. 019 is invalid and void ab initio and is of no effect.
    1. An order in the nature of a declaration pursuant to Order 16 Rule 1(2) of the National Court Rules that the decision of the first defendant of 24 April 2023 to cancel plaintiff’s Commercial Tour Operator’s Licence KTA. 019 is invalid and void ab initio and is of no effect.
    1. An order in the nature of a mandamus pursuant to Order 16 Rule 1(2) of the National Court Rules directing and compelling the second defendant and third defendant to take all steps necessary to restore the plaintiff’s Commercial Tour Operator’s Licence.
    2. The defendants pay the plaintiff’s costs of and incidental to these proceedings on a solicitor-client basis.
    3. The time for entry of these orders be abridged to the date of settlement by the Registrar, which shall take place forthwith.

Leahy Lewin Lowing Sullivan Lawyers: Lawyers for the Plaintiff
Cooper Lawyers: Lawyers for the First Defendant
Solicitor General: Lawyers for the Second and Third Defendants

[1] Annexure C to the affidavit of the second defendant filed 21 June 2023.
[2] Commercial Operations Licence Conditions 2012 at [1.1]
[3] Annexures H & K to the affidavit of the second defendant filed 21 June 2023
[4] Annexures K to the affidavit of the second defendant filed 21 June 2023 at [9]
[5] Ibid Terms of Reference Attachment A Duties and Governance Structure
[6] See s 2 Constitution of KTA; s 16 of the KTA Proclamation; Clauses 1.1, 1.2 and 1.3 of the Tour Operator’s Licence Conditions 2014 (Tabs, 1, 2, 6 of plaintiff’s list of materials; Annexures M of affidavit of the second defendant filed 21 June 2023).
[7] Tab 12 of plaintiff’s list of materials
[8] Affidavit of the second defendant filed 21 June 2023 at [29]
[9] Tab 14 of plaintiff’s list of materials
[10] Tab 15 of plaintiff’s list of materials
[11] Annexure CL9 and CL10 to Affidavit of Mr Lynn filed 12 May 2023
[12] Annexure CL11 to Affidavit of Mr Lynn filed 12 May 2023
[13] Annexure CL12 to Affidavit of Mr Lynn filed 12 May 2023
[14] Annexure CL13 to Affidavit of Mr Lynn filed 12 May 2023
[15] Annexure CL15 to Affidavit of Mr Lynn filed 12 May 2023
[16] Hagoria v Ombudsman Commission of Papua New Guinea [2003] N2400
[17] Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 at [4]
[18]Loyd v McMahon [1987] AC 625
[19] Nilkare v Ombudsman Commission (1996) SC498
[20] Ombudsman Commission v Donahoe [1985] PNGLR 348; Re Mopio [1981] PNGLR 416
[21] Council of Civil Service Unions v Minister for Civil Service [1985] AC 374
[22] Ombudsman Commission v Yama [2004] SC747; Ipatas v Somare [2010] N4190 ; Kunton v Junias [2006] SC929
[23]
[24] see [25] of written submissions; Affidavit of second defendant filed 21 June 2023 at [26] – [27]
[25] see [155] of written submissions on behalf of the second and third defendants.
[26] see ss 9 and 14 of the Track Permit Law
[27] Iambakey Okuk v Falsheer [1980] PNGLR 274; Nanan v Maru and Police Commissioner [1997] PGNC 6; N1507
[28] Kaiya v Pawa [2015] SC1469
[29] Gima v Culligan [2015] N5989
[30] Gobe Hongu Ltd v National Executive Council (supra)
[31] Written submissions of second and third defendant at [10]-,11]
[32] Kamuta v Sode [2006] N3067
[33] R v Home Secretary; Ex parte Daly [2001] 1 AC 532; R v Barnsley Metropolitan Borough Council ex p Hook ([1976] 1 WLR 1052; [1976] 3 All ER 452
[34] See for example Preamble to Constitution
[35] Affidavit of second defendant filed 21 June 2023 at [31]-[34]; [43]-[44]

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