N11323
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 227 OF 2020
BETWEEN:
CHARLES MATAWENEDI 
First Plaintiff

AND:
STEVEN NESAI, LITIAN METELEM, JILL KAVEKU, & MALEX ANDREW
Second Plaintiffs

AND:
FRANCIS TAU, ROBERT SORA BORA, SIMEON E’EBO & BLASSIUS ABOUP 
Third Plaintiffs

AND:
SAM WANGE- AS CHAIRMAN OF THE NATIONAL LANDS BOARD
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND:
PNG LANDS LIMITED
Third Defendant

AND:
LAINO AWALOMWAI- MILNE BAY PROVINCIAL LANDS ADVISOR
Fourth Defendant

AND:
BENJAMIN SAMSON- SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fifth Defendant

WAIGANI: COATES J
9 JUNE 2025 
JUDICIAL REVIEW – Urban Development Leases granted to third defendant – plaintiffs challenge on grounds of ultra vires and error of law – claims that Land Act 1996 not followed – claims that defendants circumvented sections of Land Act – failure to cross-examine on all documents disclosed in relation to decisions made for the land – failure to prove case – dismissal.

Held
Urban Development Leases were granted over two portions of land at Alotau, which were occupied by settlers. Judicial Review proceedings claimed that the decisions granting the leases did not comply with the Land Act. The claims, that sections of the Act had been breached, required cross-examination of the fifth defendant, the Secretary of the Department of Lands & Physical Planning, but such did not occur, thus depriving the plaintiffs of testing the secretary as to their claims. The case was subsequently dismissed.

Cases cited
Dr Rose Kekedo v Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122
Innovest Ltd v Pruaitch [2014] PGNC 288
JNS Ltd v Lae Builders & Contractors Ltd [2015] PGSC 79; SC1552
Mavoko v Kumbu [2022] PGSC 1122; SC2308
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Mosoro v Kingswell Ltd [2011] PGNC 151
Paul Asakusa v. Andrew Kumbakor (2008) N3303
Vaki v Baki (2012) N4809

Counsel
R Puyan for the plaintiff 
M Muga for the third defendant
Z H Waiin for the second & fifth defendant 

DECISION

1.	COATES J: The plaintiff seeks judicial review of the granting of Urban Development Leases (UDLs) over two portions of land, being Portions 714 and 587, at Gehua, Fourmil, Samarai, Milne Bay Province.

2.	Decisions granting the UDLs are said to be ultra vires decisions and errors of law.

3.	If successful, the plaintiffs seek a series of declarations and orders which would see the decision quashed, the land returned and damages for mental distress, anxiety and public humiliation.

PARTIES

4.	The plaintiff originally claimed he represented 2,219 settlers, who alleged having lived on the land for 25 years, and he described himself as Chairman of Portions.

5.	However, at various court events orders were made reducing the number of plaintiffs to those named as first, second and third plaintiffs, totalling nine people.

6.	The evidence of all plaintiffs other than the first plaintiff in basic terms went to their occupation of the land rather than to an address of issues helpful in a judicial review application, so I will assume then that their cases depend on the case of the first plaintiff and I will merely refer to the first plaintiff in this decision.

7.	There was no other complaint about that evidence from the defendants.

8.	The defendants are really relying on the evidence of the second, third and fifth defendants, whose cases are closely related, keeping in mind that all but the third defendant who has commercial interests are government or government-created entities.

9.	There was no complaint about that arrangement from the plaintiff.

BACKGROUND

10.	In 2010, PNG Lands Limited, a private development company and third defendant here, submitted an application to develop Portions 714 and 587.

11.	The decision was deferred by the Milne Bay Provincial Physical Planning Board until an external boundary survey was completed and subdivision plan provided.

12.	In subsequent years, the third defendant completed geological surveys, obtained registration of survey plans for the portions and paid licence fees for amendments its plan being registered on 6 December 2013 pursuant to the requirements of the Milne Bay Provincial Physical Planning Board.

13.	 In 2016, the third defendant on request of the Provincial Lands Office, amended the original plan on Portion 714, which was registered.

14.	On 12 December 2016, the third defendant was granted a licence from the Department of Lands and Physical Planning for temporary occupancy and temporary improvements to allow physical engineering works on the portions.

15.	On 26 March 2019, being the chairman of the National Lands Board, the first defendant, caused publication in the National Gazette of the award of Urban Development Leases to PNG Lands Limited (the third defendant) over Portions 714 and 588.

PLAINTIFF’S CASE

16.	The claim being made, both in the Originating Summons filed 17 July 2020 and Notice of Motion filed 7 March 2023, is that:

a)	Decisions which have allowed the third defendant its licences were made outside all powers under the Land Act 1996, the ultras vires aspect of the claim, and

b)	The National Lands Board failed to comply with certain sections of the Land Act by granting a UDL (or UDLs) to the third defendant, the Error of Law aspect of the case.

17.	In brief, the plaintiffs alleged that the first defendant wrongfully and without following due process by failing to advertise, did not have the power to issue the UDLs and that the whole process ignored sections of the Land Act 1996 (the Act), and that the Minister did not grant the leases

18.	Each defendant rejects these arguments.

19.	They seek that the application be dismissed.

CONDUCT OF JUDICIAL REVIEW PROCEEDINGS.

20.	The law on judicial review is settled. The Supreme Court in Dr Rose Kekedo v Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122 stated:

“...the circumstances under which judicial review may be available are where the decision making authority exceeds its power, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers.

The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision, but with the decision-making process.”

21.	In the case of Dr Rose Kekedo v Burns Philp (PNG) Petroleum (1988-1989) PNGLR 122, described judicial review, in summary, as reviewing whether an authority exceeded its powers, committed an error of law, committed a breach of natural justice or reached a decision no reasonable tribunal could have reached or abused its powers.

22.	In Vaki v Baki (2012) N4809, the list of issues to be taken into account was put as the decision making authority lacking the power to make the decision, exceeding or abusing its power, committing an error of law, breaching the principles of natural justice, arriving at a decision no reasonable person could make, taking into account irrelevant considerations or failing to take into account relevant considerations.

23.	To be understood, judicial review is not an appeal, it is a review of the exercise of powers when making decisions and such decisions must be brought within grounds as outlined in the cases above and similar cases. 

24.	Further, although an order was made to allow this proceeding to go ahead, such leave is not conclusive of a party's standing to seek judicial review, see Mavoko v Kumbu [2022] PGSC 1122; SC2308, an issue raised by the second and fifth defendants who claim the plaintiff has no standing.

25.	The plaintiff bears the onus and will have to show in relation to each of the points of review it relies on how the law is to be applied to the factual decisions made. 

ACTS CHALLENGED IN THIS REVIEW

26.	I will deal with the substantive claims first and then the issue of standing.

27.	The plaintiff claims that decisions made in the granting of the UDLs were ultra vires because exemptions to advertise the leases did not comply with the requirements of s.69 of the Act.

28.	Section 68, subject to exemptions stated in s.69, requires advertising in the National Gazette of land available for leasing.

29.	The sections are in these terms:

68. ADVERTISEMENT OF LANDS AVAILABLE FOR LEASING.

(1) Except where land has been exempted from advertisement under Section 69, the Departmental Head shall give notice, by advertisement in the National Gazette, of all lands available for leasing under this Act.
(2) An advertisement under Subsection (1) shall contain the following information:–
(a) the type of lease available to be granted;
(b) the purpose of the lease;
(c) the length of the lease;
(d) a description of the land to be leased;
(e) the amount of rent (if any) payable for the first period of the lease;
(f) in the case of a special purposes lease–any royalties that are payable;
(g) the terms and conditions of the lease;
(h) the reserve price;
(i) such other information as the Departmental Head thinks fit or the Minister directs.
(3) A statement contained in an advertisement under this Section does not in any way bind the State in the granting of a lease over land the subject of the advertisement or constitute an offer to lease land.

69. DUTY TO ADVERTISE STATE LEASES.

(1) A State lease shall not be granted without first being advertised in accordance with Section 68 unless the land has been exempted from advertisement under Subsection (2).
(2) The Minister may exempt land from advertisement for application or tender–
(a) where the lease is granted to a governmental body for a public purpose; or
(b) where it is necessary to relocate persons displaced as a result of a disaster as defined in the Disaster Management Act 1984; or
(c) where a lessee applies for a further lease; or
(d) where the State has agreed to provide land for the establishment or expansion of a business, project, or other undertaking; or
(e) where the land applied for adjoins land owned by the applicant and is required to bring the holding up to a more workable unit, providing that the claims of other neighbouring landowners are considered and their views taken into account in deciding whether to exempt the land from advertisement in favour of the applicant; or
(f) where the Department responsible for foreign affairs recommends that land be made available to the applicant for consular premises; or
(g) where the land is required for the resettlement of refugees; or
(h) where the applicant has funded the acquisition of the land from customary landowners in order to acquire a State lease over it; or
(i) where a lease is to be granted under Section 99 or 102; or
(j) where a new lease is granted under Section 110, 130 or 131.

30.	Exemptions from advertising were issued in relation to both portions of land (714 and 587) by Mr Luther Sipision on 19 December 2016 and again by Mr Tiri Wanga on 18 August 2017.

31.	The plaintiff says this of the two exemption notices: “…there is no law or provision in the Land Act or any other legislation that provides or states that two exemption notices can be issued over the same portion of lands. Not only that, there is also no law that provides in such situations, what should be done or which notice should take precedence.”

32.	The plaintiff calls this a gross error in the process of granting UDLs to the third defendant, as well as saying there is no doubt as to why s.69(2) provides few circumstances in which exemption from advertising can be granted, “because there will be suspicion when land is exempted from advertisement”.

33.	All defendants say that the plaintiff’s argument fails to establish the error classified as ultra vires, that is, outside of the power.

34.	While there is nothing stated in the Act as to two exemptions being granted over the same land, there is nothing to suggest that such cannot be done and in closely reading the copies of the exemptions provided in the evidence, it is readily apparent that the first exemption was stated to be in terms for subdivisions to allow affordable homes and the second exemption stated that the development under the leases was supported by the Alotau District Development Authority Land Mobilisation program as a local government intervention, to assist, develop and service the land thus minimising squatting on state land.

35.	The terms of that second exemption are not being challenged by the plaintiff, who only raises the issue that there are two exemptions and the Act does not provide for such.

36.	If the exemptions were contradictory in some sense, the terms of which could only be speculated, there may be an argument that an ultra vires decision had been made, but such is not certain. However, there is no such contradiction here, the exemptions merely particularising why the exemption is given.

37.	There is simply no particularization of what the gross error in the process is as alleged by the plaintiff in submissions. Without such particulars, the argument is bare, and not enough to understand why the absence of reference in the Act to two or more exemptions would deem the two exemptions given to be beyond powers. The importance of this can be understood because the Act deals with a dynamic subject, urban development, and in practicality, the number of reasons or issues may change which require a further exemption. Further, the plaintiff’s reference to suspicions being raised when land is exempted from advertisement is some type of emotional submission, not allowable and an improper submission, because there is no evidence of any wrongdoing.

38.	On this particular issue, the plaintiff fails.

39.	The next ground said to be ultra vires, and these are taken from the plaintiff’s submissions, is a reference to section 69(2)(d), which allows the minister to exempt land where the State has agreed to provide it for the establishment or expansion of a business, project or other undertaking.

40.	The plaintiff refers to the Supreme Court case JNS Ltd v Lae Builders & Contractors Ltd [2015] PGSC 79; SC1552, where it was held that only the Minister may exempt land from advertising.

41.	The plaintiff argued that Mr Sipision and Mr Wanga were delegates when they each gave exemptions, but not the Minister, his argument being that the Minister must sign the exemption and hence there was a lack of authority or acting in excess of jurisdiction.

42.	The plaintiff further submits that even if the delegation can be given the Minister revoked all delegations on 7 September 2017, as published in the National Gazette number G716.

43.	Perusal of that revocation reveals the revocation of all powers and functions of the ministerial office delegated in accordance with national Gazette number G645, published on 7 October 2015.

44.	The plaintiff’s submission is that, or appears to be, that any decisions made between 7 September 2017 and 7 October 2015, because of those revocations, must be null and void and as the decisions in question were made on 19 December 2016 and on 18 August 2017, they fall into the period when revocations were operable. 

45.	Whatever the reasons for the Minister’s revocation of delegations, which were not in evidence before the court, the notices of revocation do nothing more than to revoke delegated powers, preventing those exercising them from further exercising those powers, but they do not purport to nullify decisions made under delegated powers.

46.	No case law was referred to by the plaintiff to prove that point and it is obvious that the business of government would grind to a halt and confusion would reign in both the private and business sectors if ministers, by revoking delegations, also revoked prior decisions of delegates.

47.	The decisions then made under delegations of the Minister in relation to this case stand, there being no evidence that the Minister specifically revoked the decisions made.

48.	The plaintiff fails on these grounds.

49.	The next ground is to challenge just what the State was agreeing to in granting the UDLs, as stated in the Exemption Notices issued on 18 December 2016 and 18 August 2017.

50.	This is further submission on s.69(2)(d) - Where the state has agreed to provide land for the establishment of expansion of a business, project or other undertaking.

51.	The plaintiff’s argument referred to Mosoro v Kingswell Ltd [2011] PGNC 151; N4450, in which the issue of the UDL granted had to be within the terms of the section was determined.

52.	The plaintiff claims there's just no evidence other than what is stated in the exemptions.

53.	The second and fifth defendants isolated a very technical aspect of the plaintiff’s case - that the framing of the grounds only allowed determination of whether the second defendant acted beyond his powers in granting Portion 714 an exemption from advertising.

54.	Stronger is their submission that the plaintiff had not sought relief in reviewing the purposes for which UDLs were granted, and referred to Innovest Ltd v Pruaitch [2014] PGNC 288, paragraph 42, where Gavara-Nanu J stated: “The Statement in Support is a vital part of a judicial review application wherein the matters required under Order 16 r 3 (2) (a) should be strictly and clearly pleaded. These include particulars of the applicant, including the position which the applicant held at the time of the decision, the nature of the decision to be reviewed, the particulars of the decision maker and the date of the decision. The relief sought and the grounds for review should also be clearly pleaded: Paul Asakusa v. Andrew Kumbakor (2008) N3303.”

55.	They submit that “Leave was not sought to review whether or not the State agreed to provide the subject portions for establishment of the projects. The originating summons, the Order16 statement and the Notice of Motion did not seek to review whether the State agreed to provide portions 714 and 587 for establishment of the projects in the exemption notices.”

56.	In viewing the compulsory Order 16 Statement, filed 17 July 2020, and in particular paragraphs 3.1 to 3.7, there is no reference to this aspect of the case being put before this court, I agree with that part of the second and fifth defendant’s case. There is no case shown on this point that decisions made were outside the power.

57.	I should state that I had trouble listing this matter because of delays and those delays of months should have been used by the plaintiff to organise its case in absolute certainty that all of its arguments were ready, and if there was further argument then to make a proper application so as not to take the defendants, and the court, by surprise. 

58.	As the third defendant pointed out, the originating summons had never been amended even though it should have been, and this matter now comes before the court on a Notice of Motion filed on 7 March 2023. 

59.	As to errors of law the plaintiff says mandatory procedures under sections 104, 105 and 106 of the Land Act 1996 have been breached.

60.	Section 104 requires land suitable for subdivision to be offered by tender in the first instance.

61.	Section 105 addresses conditions precedent to land being advertised for subdivision and states before land is offered for lease that the Chief Planner shall certify the land within a physical planning area and is property zoned and is suitable for subdivision.

62.	Section 106 refers to Urban Development Leases for government land and specifies what a tender shall have, which includes preliminary subdivision proposals, preliminary sketches, proposals for infrastructure and evidence of the financial and other resources and how the Land Board determining an application shall be constituted.

63.	The plaintiff says, at paragraph 8.40 of the submissions, that the plaintiffs did not submit a UDL application to the Provincial Land Board of Milne Bay Province for Portion 714 and 587.

64.	I actually do not know what the plaintiff means by this submission, even though it comes under a heading referring to s.104, s.105 and s.106, because the plaintiffs were not seeking UDLs, however the submission states that the exemption notices from advertising meant that only the third defendant was lawfully entitled to be considered as the sole applicant. 

65.	On the evidence here that is apparent on its face because there was never any question of the plaintiffs seeking Urban Development Leases as the plaintiff seems to be saying.

66.	The plaintiff is alleging that the sections were circumvented because land zoned under the Physical Planning Act 1989 takes precedence over any Land Board decision pursuant to s.67 of the Land Act, and a lease cannot be given which would circumvent zoning requirements under the Physical Planning Act.

67.	Although not taken to the wording of s.67, it states:

67. STATE LEASES NOT TO BE INCONSISTENT WITH ZONING, PHYSICAL PLANNING, ETC.

A State lease shall not be granted for a purpose that would be in contravention of zoning requirements under the Physical Planning Act 1989, any other law relating to physical planning, or any law relating to the use, construction or occupation of buildings or land.

68.	The plaintiff submitted that there has been a failure to follow this section by not following the tender procedure in s.104, s.105 and s.106. 

69.	This attack on the granting of the UDLs is disingenuous, on the same ground as above – the plaintiff did not seek to challenge the decisions pursuant to s.104, s.105 and s.106.

70.	However, the defendants submit that s.104 and s.105 and decisions made therein cannot apply to the National Land Board, as the sections relate to decisions outside of the National Land Board’s jurisdiction in the tender of land and conditions precedent which must be met by an officer called the Chief Physical Planner.

71.	Further, there is a major flaw in the case run by the plaintiff, in that he sought all documents in relation to the land held by the Lands Department, and by order these were produced, and he had the evidence of the fifth defendant, Mr Benjamin Samson, Secretary of the Department of Lands and Physical Planning.

72.	The Statement pursuant to O16 R 3(2)(a) filed 17 July 2020 was seeking judicial review against “the decision of the National Land Board, granting UDLs to PNG Lands Limited…”, and the advertising exemptions, and the decision of the National Lands Board in alleged breach of s.104, s.105 and s.106.

73.	Section 106 refers to the Land Board and the composition of such when it considers tenders or applications for a UDL and the plaintiff claims no such tender existed.

74.	The claim in this respect being made by the plaintiff is merely that, just a claim.

75.	He failed or refused to cross-examine Mr Samson, who filed his affidavit with the departmental file, running to just under 200 pages of decisions relating to the portions, on 20 February 2025.

76.	From paragraph 4 of his affidavit, Mr Samson states:

4. The subject parcels of land, after complying with the prerequisite conditions under section 104 of the land act 1996, were offered as available for Urban Development lease (UDL).
5. UDL's over the subject parcels of land were then granted to the third defendant on 26 March, 2019 as published in the national Gazette No G230 of 26th March, 2019 as items 19 and 20 respectively.
6. This honourable court is advised that the UDL's granted were in accordance with the stringent procedures stipulated under sections 104, 105 and 106 of the land act 1996.
7. In addition, UDL's over the subject lands were not granted by the chairman of the national land borders claimed in paragraph 3.1 of the plaintiffs statement (call document No2). As required by law, the chairman only made recommendation to the minister of lands and physical planning (the Minister) and UDL's were granted by the Minister.

77.	No clearer statement swearing to compliance could have been made.

78.	A perusal of the departmental file reveals documents dealing with, among other things, issues relating to s.104, s.105 and s.106 of Lands Act, UDLs, lease arrangements, approvals, maps, photographs, rulings on nature of the land, alienated lands, subdivisions,  minutes to the Minister and all that the department deemed necessary before leases were granted.

79.	Mr Samson’s sworn evidence and the file provided ample evidence-in-chief which absolutely required to be tested by cross-examination, in order for the plaintiff to back the case he now puts before the court.

80.	All the court has before it are the sworn statements of the plaintiff and the sworn statements from each defendant, such being categorised as being conflicting evidence.

81.	As a tactical position, the defendants did not seek to cross-examine the plaintiff, nor did they have to, as he was not questioning their case in any manner which would show that the decisions they made were either ultra vires or that they had made errors of law.

82.	 The plaintiffs' position was very different, he had to test the statements and the supplied documentary evidence.

83.	During one of the many appearances in getting this matter ready the plaintiff complained that certain documents had not been released and there was discussion between the bench and bar table as to what the plaintiff could do, however, once the documents were made available, nothing further eventuated in relation to them.

84.	The plaintiff raised the issue of a failure to advertise in different guises, stating at what he listed at issues 10 and 11 of his submissions, that due process and failures to comply with conditions precedent in advertising were errors of law. 

85.	Essentially what has occurred is that the plaintiff in seeking to challenge the decisions has caused the documentary evidence of the Lands Department in all dealings over the land to be produced into the court so that he may prepare a proper challenge to the decisions by judicial review.

86.	In failing to cross-examine Mr Samson, he has left himself short of the evidence required for the court to make determinations that the process is examinable by way of judicial review.

87.	From the legal point of view, his position can be understood from what Kiefel CJ stated in the Australian High Court case, Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (8 August 2018), when examining the requirements of proving an unreasonable exercise of statutory power: “...that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacked an evident and intelligible justification.” 

88.	The plaintiff has not presented his case so that the decisions made can be seen to lack evident and intelligible justification on each of his claims.

89.	On that basis, the matter will be dismissed.

90.	I should also state that I have no need then to determine whether the plaintiff had standing to bring the matter.

ORDERS

1.	The judicial review application in Originating Summons filed 17 July 2020, in OS (JR) No. 227 of 2020 and all subsequent applications associated with file OS (JR) No. 227 of 2020 are dismissed.
2.	The plaintiffs shall pay the defendants’ costs on a party-party basis as agreed or as taxed.
________________________________________________________________
Lawyers for plaintiff: Baniyamai Lawyers 
Lawyers for third defendant: Simpsons Lawyers
Lawyer for second and fifth defendant: Solicitor General