N11313
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 27 OF 2025

BETWEEN:
JOSEPH TAMUA as Representative of the Koya Clan of Tiapili Village Erave Rural LLG, Kagua Erave District, Southern highlands Province whose names appear at the Schedule to the Originating Summons.
Plaintiff

AND:
RODNEY GULI and on behalf of Kawikera Clan
First Defendant

AND:
ROBIN WALLY and on behalf of Lerepa Clan
Second Defendant

AND
PINSSON PINDIPIA sitting as Local Land Court Magistrate at Ialibu, Southern Highlands Province
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

WAIGANI:   DOWA J
9, 21, 28 MAY 2025

PRACTICE & PROCEDURE – Originating Summons – Order 16 Rule 3 (1) & (2) NCR- Application for leave to apply for Judicial review – application to review decision of the Local Land Court held at Ialibu, SHP, granting approval of agreement under Land Dispute Settlement Act- whether Plaintiff has sufficient interest-whether grounds exist for leave- -there is  arguable case disclosed- application for leave granted.

Cases cited
NTN -v- PTC [1987] PNGLR 70 
 Asakusa -v- Kumbakor (2008) N3303
 Danley Kotapu v David Manning & Others (2025) N11282: 

Counsel
Y Otmar for the plaintiff
R Mobihia for the defendants
				    
RULING

1.	DOWA J: This is a decision on an application for leave to apply for judicial review pursuant to Order 16, Rule 3 (1) of the National Court Rules.

2.	The Plaintiff applies for leave to file an application for judicial review of the decision of the Local Land Court presided by the third Defendant made on 4th October 2022  in proceedings LLC No.2 of 2022-Rodney Guli on behalf of Kawikera Clan v Robin Wally on behalf of Lerepa Clan in which the third Defendant approved and endorsed a Mediation Agreement entered between the first and second Defendants.

 Facts

3.	The Plaintiff Joseph Tamua comes from Tiapili village, Erave Rural LLG, SHP. He is the representative of Koya Clan and lead Plaintiff in this proceeding. The Plaintiff’s Koya clan is a landowner of the area between Tupiri and Waro in the Southern Highlands Province. The proceeding concerns disputes over land known as Mt. Kali 1 & 2 between the Koya clan and first Defendant’s Kawikera clan and the third Defendant’s Lerepa clan.  

4.	In October 2016, Oil Search Ltd funded a road project from Erave to Samberigi through its tax credit scheme. The Plaintiff was identified as one of the landowner clans to participate in this project. The other clans were Kerakera and Tipurupeke.

5.	 In 2018, during the road construction phase, Oil Search Ltd decided to develop a quarry pit at Kali 1 & 2. Unknown to the Plaintiff, some members of the Koya clan fraudulently entered an agreement with the first Defendant to share royalty payments for the quarry pit in proportions; 65 % to Kawikera and 35% to Koya. The Plaintiff wrote to Oil Search Ltd alleging that the agreement was entered out without authority and as a result Oil Search ceased payments. This resulted in first Defendant issuing Court Proceedings - OS 251 of 2018-between Kawikera clan v Oil Search Ltd. The second Defendant joined the proceedings as second Defendant. The proceedings were discontinued by the consent of parties.

6.	In 2021, first Defendant commenced a second proceeding in OS No 205 of 2021 against Oil Search Ltd and the second Defendant. Again, the parties discontinued the proceedings by consent in December 2021. One of the terms of the Consent Order was that the matter be referred to the Local Land Court to conduct mediation to determine customary ownership and pending determination of ownership, Oil Search would continue to hold monies in trust. Although the Plaintiff was identified as a landowning clan of the subject land, they were not made a party to the  proceedings and they were not aware of the consent orders.

7.	Unknown to the Plaintiff and equipped with the consent orders the first and second Defendants proceeded to a Land Mediation Agreement on 8th September 2022. The Mediation Agreement was then endorsed by the third Defendant on 4th October 2022 whereby the first Defendant clan was recognized as the legitimate landowners of Mt. Kali1 & 2 Gravel Pit sites and that they would be entitled to 65 % royalty while the second Defendant would receive 35 %. The Plaintiff clan was not advised of the mediation and did not participate in the mediation. The Plaintiff clan came to know about the mediation orders in February 2023 when they learnt that the first Defendant filed an appeal in the Provincial Land Court in Ialibu. On 28th February 2023, the Plaintiff filed an application to join the appeal but was rejected by the learned Magistrate. In June 2023, the Plaintiff filed an application for extension of time to appeal against the Local Land Court decision through his lawyer, Peter Yer Lawyers. However, the Plaintiffs lawyers were threatened by the first defendant and thus did not attend Court and the matter was eventually dismissed for want of prosecution. The Plaintiff had no opportunity to challenge the decision of the Local Land Court.

8.	Aggrieved by the decision, the Plaintiff initiated the current proceedings particularly to seek leave to apply for judicial review of the decision of the first Defendant. 

Documents

9.	The Plaintiff relies on the following documents:

(a)	Originating Summons filed 25th March 2025
(b)	Statement Under Order 16 Rule 3(2)(a) of the National Court Rules (Doc#2) filed 25th March 2025
(c)	Affidavit Verifying Facts of Joseph Tamua filed 25th March 2025 (Doc#3).
(d)	Supplementary Affidavit of Joseph Tamua filed 14th  May 2025 (Doc# 6).

The hearing 

10.	The application was heard on 21st May 2025. Ms. Mobihia, counsel for the State Defendants, opposed the application on the basis that the Plaintiff has not met all the prerequisites of leave. 

Issue

11.	The main issue for consideration is whether the Plaintiff be granted leave to apply for judicial review.

Law

12.	The principles applicable to an application for leave to apply for judicial review are settled in this jurisdiction: refer NTN v PTC (1987) PNGLR 70 and Asakusa v Kumbakor (2008) N3303.  The Court has a discretion to grant leave where the Court is satisfied as to the following considerations:

a)	The applicant must have sufficient interest.
b)	The applicant must have an arguable case.
c)	There must be no undue delay.
d)	The applicant must have exhausted all other statutory/administrative avenues for appeal or review.

13.	On the use of discretion, the Court in NTN v PTC, said this at page 7 of the judgment:

“Applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest (O 16, r 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, r 3(1).

In exercising its discretion, the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, Lord Diplock set out the principles upon which the Court should act and I respectfully adopt them. Lord Diplock said (at 644):

"If, on a quick perusal of the material then available, the court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application." 

14.	I will now turn to the present case to consider whether the Plaintiff has met the prerequisites for leave to apply for judicial review.

a)	Sufficient Interest

15.	The Plaintiff Joseph Tapua is the lead Plaintiff. He is a member of the Koya clan. He instituted this proceeding for himself and on behalf of all clan members who gave consent and authorized him to represent them. The Koya clan members are recognized landowners of the road project between Erave and Samberigi. They are also recognized landowners of Mt. Kali 1 & 2 quarry pit before the Local Land Court decision of 3rd October 2022. The decision of the third Defendant, the Local Land Court, which approved the mediation agreement excluding the Plaintiff as owner of Mt. Kali 1 & 2, directly affects their interest in the subject land. Therefore, they have sufficient interest and standing to institute this proceeding.  

		b) Undue delay

16.	The decision the subject of review was made on 3rd October 2022. The Plaintiff commenced the current proceeding on 23rd March 2025, more than seventeen (17) months later. The National Court Rules prescribes 4 months within which an application for judicial review can be filed. However, the National Court has a discretion to extend that period provided the applicant provides a reasonable explanation for the delay. One of the determining considerations under Order 16 Rule 4 of the National Court Rules is that if the delay is going to cause prejudice or is detrimental to good administration, leave ought to be refused.

17.	The Plaintiff, Tamua, deposed in his affidavit that they were not aware of the consent order in the National Court which directed the parties to conduct mediation to determine ownership. After the consent orders were obtained the first and second Defendants arranged for mediation in a secretive manner. The Plaintiff goes on further to say that no real mediation took place as they were not made aware. They did not know about it until February 2023. The plaintiff applied to join in an appeal proceeding in the Provincial Land Court filed by the first Defendant but was refused. When they tried to apply for extension of time to appeal, their lawyer was threatened by the first Defendant resulting in the dismissal of proceedings for want of prosecution,  

18.	I note the delay is brought about by the actions of the Defendants and the party prejudiced appears to be the Plaintiff. I accept the explanation provided by the Plaintiff and find that the delay is not unreasonable. It is not as though the Plaintiff did nothing. 

c)	The applicant must have an arguable case.

19.	Apart from sufficient interest, the next important consideration is whether an applicant has an arguable case. That is the applicant has raised important, serious or substantive points of law and or facts which require judicial determination. In the present case, the Plaintiff raises the following grounds:

		a. errors of law
		b. failure to consider relevant factors
		c. unreasonable decision under the Wednesbury principles

a.	Errors of law. 

20.	The Plaintiff submits that the third defendant erred in law approving the mediated agreement without complying with the procedure prescribed under Sections 18, 19 and 28 of the Land Dispute Settlement Act. There is no evidence or record of proceedings in Form 7 to show how they arrived at the agreement between the first and second Defendants to the exclusion of the Plaintiff. The initial landownership identification and social mapping process shows that the Plaintiff’s Koya Clan was identified as a landowning group of the subject land, Mt. Kali 1 & 2. Yet, the Plaintiff was not informed of the mediation and did not participate. It is therefore arguable that the Plaintiff was deliberately kept out of the process and being deprived of participation. The Plaintiffs Koya clan has sufficiently demonstrated that they have an arguable case and thus be allowed to present their case in a substantive judicial review.

b.	failure to consider relevant factors

21.	The Plaintiff submits that the third Defendant proceeded to make orders without considering that the first and second Defendants did not sign the Approval Agreement in Form 10. Again, there was no Form 7 presented to show evidence of compliance with Sections 18 and 19 of the Act. In the circumstances, it is arguable that the third Defendant failed to take into account relevant matters when making its decision. The third party is not a party to the current application. I find that the Plaintiff has an arguable case.

	c. unreasonable decision under the Wednesbury principles

22.	The Plaintiff was identified as landowner through Government sanctioned social mapping and landownership identity process. It is arguable that the third Defendant’s decision is unreasonable to the extent that it deprives the Plaintiff from participating in and benefiting from the royalty payments.  

	Conclusion

23.	The Court has a discretion whether to grant or refuse an application for leave to apply for judicial review. The Court shall exercise its discretion judicially. This is what I stated in my recent decision in the case, Danley Kotapu v David Manning & Others (2025) N11282: 

“Finally, the Court is mindful that the Plaintiff should not be driven from the judgment seat prematurely. This is especially so in applications for leave to apply for judicial review. If there is a shred of argument that the Plaintiff might have and which, with the filing of additional documentation, improve his chances in a substantive hearing, the Court would and should allow him to present his case. However, if it becomes clear and obvious that the Plaintiff is unlikely to succeed in his substantive application, the Court should not give a false impression that the Plaintiff will somehow succeed.”

24.	In the present case, the Plaintiff has demonstrated that its interest has been affected by the decision of the third Defendant. It has demonstrated that it has standing to seek judicial review of the third Defendant’s decision. It has demonstrated that it has an arguable case. I will therefore grant the application for leave to apply for judicial review of the decision of the third Defendant’s decision of 4th October 2022.

	
ORDERS
25.      The Court orders that:
i)	The Plaintiff’s application for leave to apply for judicial review is granted. 

ii)	The Plaintiff shall file its substantive Notice of Motion for judicial review within 21 days. 

iii)	Matter adjourned to 1st July 2025 at 9.30am
iv)	Time is abridged.

Lawyers for the plaintiff: Pacific Legal Group Lawyers	
Lawyer for the defendants: Solicitor General