|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO 59 OF 2025 (CCI)
BETWEEN
HAIAMA MAIA NAIRU INCORPORATED LAND GROUP (REG. ILG NO. 1566)
Plaintiff
AND
THE MINISTER FOR PETROLUEM AND ENERGY at the material time in the exercise of the powers under Section 169 of the Oil and Gas Act, 1998
First Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
Waigani: Makail, J
2025: 10th & 22nd July
PRACTICE & PROCEDURE – Application for leave to apply for judicial review – Locus standi – Arguable case – Exhaustion of alternative remedies – Delay – Explanation for delay – National Court Rules – Order 16, rule 3(2)
PRACTICE & PROCEDURE – Competency of originating summons – Competency of statement – Failure to file affidavit verifying facts – National Court Rules – Order 16, rule 3(2)
Facts
This is an application for leave to review two decisions of the Minister for Petroleum and Energy where the Minister omitted to recognise and include the plaintiff and its members as beneficiaries for the purpose of distribution of benefits to be derived from a petroleum development project in the Baimuru District of the Gulf Province described as Petroleum Retention License No 15 (“PRL15”) and the Petroleum Pipeline Development Licence No 19 (“PDL19”) pursuant to Sections 167 and 168 of the Oil and Gas Act, 1998. The defendants did not contest the plaintiff’s submissions that it had locus standi, that there is an arguable case, that there are no alternative remedies by which it must exhaust and that while there was a delay of about one year and three months in bringing the application, that the delay was sufficiently explained, but objected to the competency of the originating summons, statement and failure to file an affidavit verifying facts, amongst others, that the additional relief were pleaded in addition to leave in the originating summons which was contrary to and in breach of Order 16, rule 3(2)(a) of the National Court Rules.
Held:
1. The plaintiff has established that it had locus standi, that there is an arguable case, that there are no alternative administrative remedies to exhaust and while there has been a delay of about one year and three months since the two decisions of the Minister for Petroleum and Energy, the delay has been sufficiently explained.
2. Order 16, rule 3(2) of the National Court Rules which states that “An application for leave must be made by originating summons ex parte to the Court......” is not expressed to exclude additional relief from being pleaded in the originating summons. Peter Makeng v Timbers (PNG) Limited (2008) N3317 distinguished and not followed.
3. The additional relief pleaded in addition to leave in the originating summons does not render the originating proceedings incompetent and that the order sought for leave to apply for judicial review of the two decisions of the Minister for Petroleum and Energy where the Minister omitted to recognise and include the plaintiff and its members as beneficiaries for the purpose of distribution of benefits to be derived from a petroleum development project in the Baimuru District of the Gulf Province described as Petroleum Retention License No 15 (“PRL15”) and the Petroleum Pipeline Development Licence No 19 (“PDL19”) pursuant to Sections 167 and 168 of the Oil and Gas Act, 1998 is granted.
Cases cited:
Paul Asakusa v Andrew Kumbakor, Minister for Housing & 3 Ors (2008) N3303
Ila Geno & Ors v The State [1991] PNGLR 22
Internal Revenue Commission v The National Federation of Self-Employed and Small Business Limited [1981] UKHL 2; [1982] AC 617
Olasco Niugini Pty Ltd v Kaputin [1986] PNGLR 244
NTN Pty Ltd v Post & Telecommunications [1987] PNGLR 70
Diro v Ombudsman Commission of PNG [1991] PNGLR 153
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Peter Makeng v Timbers (PNG) Limited (2008) N3317
Joshua Kalinoe v Paul Paraka Lawyers (2014) SC1366
Innovest Limited v Patrick Pruaitch (2014) N5949
National Executive Council & Attorney-General v Gilbert Toropo (2023) SC2451
Counsel:
Mr A Jerewai, for Plaintiff
Ms M Narokobi, for Defendants
RULING
22nd July 2025
1. MAKAIL J: This is an application for leave to review two decisions of the Minister for Petroleum and Energy where the Minister omitted to recognise and include the plaintiff and its members as beneficiaries for the purpose of distribution of benefits to be derived from a petroleum development project in the Baimuru District of the Gulf Province described as Petroleum Retention License No 15 (“PRL15”) and the Petroleum Pipeline Development Licence No 19 (“PDL19”) pursuant to Sections 167 and 168 of the Oil and Gas Act, 1998.
2. The decisions were published in the National Gazette as follows:
(a) National Gazette No. G.967 dated 6th December 2023: and
(b) National Gazette No. G986 dated 6th December 2023.
Principles for Grant of Leave
3. The plaintiff bears the onus to establish that it has locus standi to bring the application for leave to apply for judicial review, that there is an arguable case, that it has exhausted all administrative remedies, if any, and that the application for leave has been promptly made and if there is any delay, that it has been sufficiently explained: see also Paul Asakusa v Andrew Kumbakor, Minister for Housing & 3 Ors (2008) N3303.
4. There is no contest to Mr Jerewai of counsel for the plaintiff’s submissions on the role of the Court when determining an application for leave. When determining an application for leave, it is not the role of the Court to delve into the merits of the application but on a quick perusal of the material tendered in support of the application, it discloses an arguable case, and that the applicant is not a mere busy body. In Ila Geno & Ors v The State [1991] PNGLR 22 at 24, the Supreme Court adopted with approval the principles applicable for application for leave set out by Lord Diplock in his judgment in International Revenue Commission v The National Federation of Self-Employed and Small Business Limited [1981] UKHL 2; [1982] A.C. 617 at 644 in these words:
“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 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.”
5. As to its purpose, Lord Diplock said:
“Its purpose is to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authority might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”
6. Lord Scarman in the same case expressed this principle in this way:
“The curb represented by the need for an applicant to show, when he seeks leave to apply, that he has such a case, is an essential protection against abuse of legal process. It enables the court to prevent abuse by busy-bodies, cranks, and other mischief-makers.”
7. Numerous subsequent National Court cases such as Olasco Niugini Pty Ltd v Kaputin [1986] PNGLR 244, NTN Pty Ltd v Post & Telecommunications [1987] PNGLR 70, and Diro v Ombudsman Commission of PNG [1991] PNGLR 153 have adopted the principles enunciated in the above English case. As to whether the plaintiff has made out an arguable case, it is well settled in this jurisdiction following the case of Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 at 124:
“The circumstances under which judicial review may be available are where the decision making authority exceeds its powers; 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.”
Locus Standi of Plaintiff
8. There is no contest that the plaintiff has locus standi and based on the affidavit of David Kairi Havae filed on 23rd March 2023, I am satisfied that the plaintiff has locus standi to bring the application for leave to apply for judicial review because it is a duly registered incorporated land group (ILG-1566) and all its members are from Haiama Maia Nairu clan and stand to suffer loss from the use of their land from the petroleum development project intended to take place under the PRL15 when it is converted to a PDL.
Arguable Case
9. The defendants do not contest Mr Jerewai’s submissions in relation to an arguable case. Based on the affidavit of David Kairi Havae (supra), I note that while there are copies of the Gazettal Notices of the two decisions by the Minister tendered by the plaintiff, I am satisfied that copies will be tendered later at the trial and that there is a Ministerial Determination of Landowner Beneficiaries List for Baimuru clans of Gulf Province tendered as annexure “A” to the affidavit of David Kairi Havae (supra) identifying the various clans as beneficiaries of PDL15 and PPL18 which omitted the plaintiff and its members and letter from the Provincial Advisor, Lands of the Division of Lands and Physical Planning, Gulf Provincial Administration dated 23rd June 2023 verifying that the plaintiff and members have been identified as owning land over portion EFB Lines 18-3 near the current Antepole wellhead. In addition, there is a signed letter by the other clans of Nemina, Waboa, and Sapusa dated 16th August 2024 throwing their support behind the plaintiff’s application to be recognised as one of the beneficiaries as members of the clan of Haiama Maia Nairu own land sharing the boundary with them.
10. Given this, I am further satisfied that there is an arguable case that the Minister committed an error of law or acted ultra vires when he omitted the plaintiff as one of the beneficiaries of the intended petroleum development project. Furthermore, that there was abuse of power when the social mapping and landowner identification conducted pursuant to Section 47 of the Oil and Gas Act did not include and or refused to include the plaintiff as one of the clans to receive benefits derived from the intended petroleum development project.
Exhaustion of Alternative Remedies
11. The defendants do not contest Mr Jerewai’s submissions in relation to an arguable case. Based on the affidavit of David Kairi Havae (supra), I note that although there is no provision in the Oil and Gas Act for alternative remedies for an aggrieved party to challenge a decision of the Minister, I am satisfied that the plaintiff has made several requests in writing to the defendants to include it as one of the beneficiaries but has not been successful. Given this, the only option left for the plaintiff is to bring the matter to Court by way of judicial review.
Reasonable Explanation for Delay
12. Mr Jerewai concedes that there has been a delay of about one year and three months since the decisions of the Minister of 6th December 2023, but the defendants do not contest Mr Jerewai’s submissions that the delay has been sufficiently explained because following the decisions, the plaintiff had written a letter to the Minister dated 8th January 2024 requesting that it be recognised and included in the determination and has actively followed up with a letter by its lawyers to the Secretary of the Département of Petroleum & Energy dated 23rd January 2024 and attendances at the office of the latter until the filing of this proceedings on 25th March 2025. For these reasons, while I note that there has been a delay in bringing the within proceedings I am satisfied that the plaintiff has sufficiently explained the delay or why the application for leave has not been made promptly.
Abuse of Process
13. The defendants objected to the competency of the originating summons and statement made pursuant to Order 16, rule 3(2)(a) of National Court Rules (“NCR”). As to the originating summons, Ms Narokobi of counsel for the defendants submitted that Order 16, rule 3(2) of the NCR states that leave must be pleaded as the sole relief in the originating summons. In this case the plaintiff did not plead leave as the sole relief in the originating summons but additional relief in the form of certiorari and mandamus. This is contrary to Order 16, rule 3(2) of the NCR.
14. As to the statement, counsel submitted that Order 16, rule 3(2) states that it must give a concise description of the decision made or required to be made, the subject of the review including particulars of the decision maker, the statutory provision under which the decision was made or required to be made but failed to make, and the date of the decision, a succinct summary of the relevant factual circumstances and an accurate description of the relief sought, the precise grounds on which the relief is sought and an affidavit verifying the facts relied upon must be filed. In the present case, the plaintiff failed to attend to these procedural matters which render the statement incompetent.
15. Finally, Order 16, rule 3(2)(b) states that an affidavit verifying facts must be filed in support of the statement. In this case the plaintiff failed to file an affidavit verifying the statement.
16. They rely on Peter Makeng v Timbers (PNG) Limited (2008) N3317, Joshua Kalinoe v Paul Paraka Lawyers (2014) SC1366, Innovest Limited v Patrick Pruaitch (2014) N5949 and National Executive Council & Attorney-General v Gilbert Toropo (2023) SC2451.
17. Mr Jerewai strongly opposed the objection and pointed out that while the originating summons included additional relief, the plaintiff does not seek them at the leave stage but will if leave were granted. Moreover, the inclusion of the additional relief is to give context to the application for leave for judicial review, that for the purpose of the substantive proceedings, the plaintiff will seek these relief and that the application for leave is not unmeritorious or brought by a mere busy body. If the Court were to uphold the defendants’ submissions and dismiss the proceedings for being incompetent, it will be giving prominence to procedural limitation at the expense of substantive justice.
18. Mr Jerewai further submitted that the defendants’ objection represents a narrow view of the Court Rules and will serve no purpose but gross injustice will occur particularly where the defendants have not contested the plaintiff’s submissions in relation to the criteria for grant of leave, especially where in the words of Lord Diplock in Internal Revenue Commission v The National Federation of Self-Employed and Small Business Limited (supra) on a quick perusal of the material before the Court discloses an arguable case.
19. As to the question of competence of the originating summons, Order 16, rule 3(2) (supra) relevantly states that “An application for leave must be made by originating summons ex parte to the Court......”
20. I note the defendants’ construction of Order 16, rule 3(2) (supra) which is reinforced by the following passage in Peter Makeng case (supra) at [37]:
“In terms of the procedure for grant of leave for judicial review, an application for leave is made by Originating Summons. The Originating Summons should not plead any other relief. It should simply seek leave to apply for judicial review of the subject decision which should be particularised.”
21. The above passage has been adopted by the National Court and Supreme Court in numerous subsequent judgments some of them have been relied upon by the defendants in this case. With respect, from my reading of Order 16, rule 3(2) (supra) it is not expressed to exclude additional relief to be pleaded in the originating summons. Conversely and inferentially, an originating summons will be incompetent if leave to apply for judicial review is not pleaded. There are good reasons for the view I am proposing because at the hearing, the plaintiff will only move the Court for grant of leave. Any additional relief pleaded in the originating summons will not be sought until the hearing of the application for judicial review if leave is granted.
22. Moreover, inferentially an additional relief is not prohibited from being pleaded in the originating summons because according to Order 16, rule 3(8) of the NCR where leave is granted, (a) and if the relief sought is an order of prohibition or certiorari, the Court may so direct that the grant of leave shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court orders otherwise and (b) if any other relief is sought, the Court may at any time grant in the proceedings an interim relief that are granted in an action begun by writ.
23. For these reasons, with the greatest of respect, Peter Makeng case (supra) is distinguishable and will not be followed.
24. In addition, I have not been referred by Ms Narokobi to a Supreme Court judgment which in its ratio decidendi, approved the interpretation given by the National Court in Peter Makeng case (supra) that Order 16, rule 3(2) requires an originating summons to plead only the relief of leave. On the other hand, I have read the Gilbert Toropo case (supra) and find that the statement which the defendants’ counsel rely on is obiter dicta. This is because the issue in that case was whether the State was given notice to the hearing of the application for leave under Section 8 of the Claims By and Against The State, 1996.
25. I have also read the Innovest case (supra) and again, I find the passage at [5] that “It should also be noted that the only matters that should be pleaded in the originating summons are; leave (to apply for judicial review), which is the relief sought and the decision to be reviewed for which leave is sought. The Rules do not allow for the substantive relief such as an order in the nature of certiorari, mandamus or declaration to be pleaded in an originating summons (Ordre 16 r 3(2). Any substantive relief should be sought and pleaded in the Statement in Support together with the grounds for review (Order 16, rr 1 and 3 (2) (a))” obiter dicta because it was made in passing in a case where the issue was whether an interim stay or restraining order should be sought in the originating summons or notice of motion.
26. Similarly, the decision of the Supreme Court in Joshua Kalinoe case (supra) which approved the passage at [37] of the judgment in Peter Makeng case (supra) is obiter dicta and distinguishable because one of the issues in that case was whether it was proper for a party to ask for and obtain substantive relief at the leave stage in a judicial review proceeding. That was in the context of two appeals brought by the appellants against two separate orders of the National Court which granted leave to the respondent law firm to apply for judicial review of the appellants’ decision to terminate all brief-outs and stop payment of legal costs to the said law firm including grant of additional relief which were substantive or final in nature. The additional relief were granted without a trial.
27. In the present case, as Mr Jerewai pointed out in his submissions, while the originating summons included additional relief, the plaintiff does not seek them at the leave stage but will at trial if leave is granted. This is the distinction between this case and Joshua Kalinoe case (supra). Moreover, the inclusion of the additional relief is to give context to the application for leave for judicial review, that for the purpose of the substantive proceedings, the plaintiff will seek these relief and that the application for leave is not unmeritorious or brought by a mere busy body.
28 I also uphold Mr Jerewa’s submission that if the Court were to uphold the defendants’ submissions and dismiss the proceedings for being incompetent, it will be giving prominence to procedural limitation at the expense of substantive justice. The defendants’ objection represents a narrow view of the Court Rules and will serve no purpose but gross injustice will occur particularly where the defendants have not contested the plaintiff’s submissions in relation to the criteria for grant of leave, especially where in the words of Lord Diplock in Internal Revenue Commission v The National Federation of Self-Employed and Small Business Limited (supra) on a quick perusal of the material before the Court discloses an arguable case. In this jurisdiction, I am also required by Section 158 (Exercise of the Judicial Power) of the Constitution to give paramount consideration to the dispensation of justice, and I do so by finding that the additional relief pleaded in the originating summons in addition to leave in the originating summons does not render the originating summons incompetent.
29. As to the statement pursuant to Order 16, rule 3(2)(a), I am not satisfied that it is incompetent because from my perusal of the statement, it sufficiently articulates the background facts, decision sought to be reviewed and grounds of review. Moreover, there cannot be any doubt or confusion as to the grounds because they formed the finding that the plaintiff has demonstrated that there is an arguable case in the form of an error of law, ultra vires and abuse of process which the Kekedo case (supra) speaks of at [10] (supra).
30. As to the objection in relation to the plaintiff’s failure to file an affidavit verifying facts, while I note that the plaintiff did not file one, there is an affidavit in support filed by David Kairi Havae (supra) which articulates the background facts, the decisions sought to be reviewed and grounds for leave to apply for judicial review which in my respectful view, serves the same purpose as an affidavit verifying facts.
31. To dismiss the within proceedings solely on this ground will constitute gross injustice to the plaintiff especially where again in the words of Lord Diplock in Internal Revenue Commission v The National Federation of Self-Employed and Small Business Limited (supra) on a quick perusal of the material before the Court discloses an arguable case. Further, as I said above, in this jurisdiction, I am also required by Section 158 (Exercise of the Judicial Power) of the Constitution to give paramount consideration to the dispensation of justice and I am not satisfied that the plaintiff’s failure to file an affidavit verifying facts renders the within proceedings incompetent.
Order
32. The order is:
________________________________________________________________
Jerewai Lawyers: Lawyers for Plaintiff
Solicitor General: Lawyers for Defendants
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2025/235.html