Toea Homes Ltd v Samson [2025] PGNC 60; N11181 (25 February 2025)

N11181

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 87 OF 2024

BETWEEN:
TOEA HOMES LIMITED
First Plaintiff

AND:
THE PAPUA NEW GUINEA DEFENCE FORCE
Second Plaintiff

AND:
BENJAMIN SAMSON as SECRETARY FOR LANDS AND PHYSICAL PLANNING
First Defendant

AND:
HON JOHN ROSSO as MINISTER FOR LANDS AND PHYISCAL PLANNING
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
GOROBE KAE INCORPORATE LAND GROUP
Fourth Defendant

WAIGANI: PURDON-SULLY J
18, 25 FEBRUARY 2025

JUDICIAL REVIEW - PRACTICE & PROCEDURE – Fourth Defendant’s application for dismissal of the proceedings based on abuse of process by reason of Plaintiffs’ failure to meet the requirements of Order 16 r 3(2) and Order 16 r 4(2) of the National Court Rules - alternatively application to set aside grant of leave for judicial review based on undue delay and the court being misled – whether the Fourth Defendant’s application to dismiss is an abuse of process in itself – issues raised by the Fourth Defendant should and can be properly raised at substantive hearing – Fourth Defendant’s Motion to dismiss an abuse of process

Cases cited
Kalinoe v Paul Paraka Lawyers [2014] PGSC; SC1366
Innovest Limited v Pruaitch [2014] PGNC288; N5949
Sekesu Sisapi Land Gorup Inc ILG No 2121 v Turama Forest Industries Limited [2010] SC1072
Angui v Wagun [2011] N4194
Marape v O’Neill [2016] SC1493
O’Neill v Eliakim [2016] SC1524
Peter Makeng v Timbers (PNG) Ltd [2008] N3317
Manase v Polye [2021] SC2150
PNBC v Jeff Tole (2002) SC 694
Todai v Schnaubelt [2017] PGSC37; SC1637

Counsel
Mr J Brooks for the first plaintiff
No appearance for the second plaintiff
Mr P Bati for the first, second and third defendants
Ms J Waka for the fourth defendant

1. PURDON-SULLY J: On 12 November 2024 the Plaintiffs were granted leave to file for Judicial review of the decision of the First Defendant’s predecessor as delegate of the Second Defendant’s predecessor made on or about 10 June 2017 and published in the National Gazette G268 dated 26 April 2018 in accordance with section 12(1) of the Land Act 1996 to compulsorily acquire 16.5123 hectares of the First Plaintiff’s State Lease over Portion 675 Milinch Granville, Fourmil Moresby, National Capital District (the decision).
2. The State who by virtue of s 8 of the Claims By and Against the State Act, and Order 16 r 3 of the National Court Rules (NCR) has a right to be heard on the application, did not object to the grant of leave.
3. By Notice of Motion filed on 6 December 2024 the Fourth Defendant seeks the dismissal of the proceedings on the basis that the proceedings are an abuse of process or alternatively the grant of leave be set aside. The Notice of Motion is in the following terms:
   1. Pursuant to Order 16 r 13(13)(2)(a) and (b)(i) and Order 16 r 4 of the National Court Rules and Section 155(4) of the Constitution, this proceeding be dismissed for being an abuse of process.
   2. Alternatively, pursuant to Order 16 r 4 of the National Court Rules and Section 155(4) of the Constitution, leave granted to the Plaintiffs on 12 November 2024 be set aside on the basis that the Court was deliberately mislead by the Plaintiffs on the significant question of fact, being undue delay.
   3. Costs to be awarded against the Plaintiffs.
   4. Such further orders as the Court deems fit.
4. It is contended on behalf of the Fourth Defendant, in summary, that the proceedings are an abuse of process and should be set aside because:
   1. The Originating Summons by the Plaintiffs failed to plead leave only, contrary to Order 16 r 3 of the NCR and the principles enunciated in the Supreme Court decision in Kalinoe v Paul Paraka Lawyers [2014] PGSC; SC1366.
   2. The Plaintiffs failed to particularise the decision they are challenging as established in Innovest Limited v Pruaitch [2014] PGNC288; N5949, the Fourth Defendant unable to understand whether there was an error on the decision of 10 June 2017 or an error on the publication of the GPO on 26 April 2018;
   100. The Plaintiffs have sought relief of certiorari but failed to institute proceedings within four (4) months from the date of the decision pursuant to Order 16 r 4(2) of the NCR, the Plaintiffs not only failing to provide a reasonable explanation for the delay but also deliberately misleading the Court as to when it first became aware of the decision, reliance placed on the decision of Sekesu Sisapi Land Gorup Inc ILG No 2121 v Turama Forest Industries Limited [2010] SC 1072 (Sekesu Sisapi) where the Supreme Court upheld an appeal against a grant of leave to apply for judicial review on the basis that the National Court had been misled on a significant and critical question of fact relevant to delay in filing an application for leave, the court quashing the decision to grant leave.
   4. The decision the Plaintiffs are challenging is already before a Court of competent jurisdiction, has been tested and considered, and the matter is ready for trial, these proceedings thus an abuse of process.
5. It is submitted on behalf of the First Plaintiff that the Fourth Defendant’s application is misconceived and an abuse of process in itself. It is submitted that substantively and procedurally the Fourth Defendants application fails and should be dismissed because:
   1. All issues dealt with at the leave stage, including undue delay can be revisited in full at the substantive judicial review hearing or the grant of leave otherwise challenged by way of appeal to the Supreme Court under Order 16 rule 11 of the NCR. The latter was the process followed in Sekesu Sisapi, the decision relied upon by the Fourth Defendant, Counsel for the First Plaintiff the lead counsel in that appeal and well acquainted with the decision.
   2. There is no jurisdictional basis to file the application, Order 16 Rule 13(13(2)(a) and (b)(i) of the NCR pertaining to summary determination and not relevant to these proceedings; Order 16 Rule (4) of the NCR likewise providing no basis or process for the Fourth Defendant to challenge the grant of leave; and s 155(4) of the Constitution of no assistance given the remedies available to the Fourth Defendant under other law, namely the right to appeal to the Supreme Court against the grant of leave for judicial review or the opportunity to argue the matter on substantive review.
   100. There is no defect in the pleadings or non-compliance with the rules for the reasons advanced on behalf of the Fourth Defendant.
   4. The Plaintiffs were never served with the notice of acquisition of land in which they had a direct interest by the Department of Lands and Physical Planning, the service of documents four (4) years later in unrelated proceedings, not a factor relevant to the issue of delay. Neither the First nor Second Plaintiffs were parties to the other proceedings initiated by the Fourth Defendant, the issues in those proceedings unrelated to a challenge to the acquisition of land under State law.
6. The Plaintiffs seeks costs given that the inappropriate mode to proceed was an issue raised by Counsel for the First Plaintiff with Counsel for the Fourth Defendant when the matter was before the Court on 12 December 2024.
7. Counsel for the State supports the submissions of the Plaintiff, save on costs which he submits should be in the cause. He acknowledges that the State raised no objection to the grant of leave, the State’s position being that the First Defendant only became aware of the decision shortly before the execution of his affidavit in October 2024, viewing the decision as unlawful. Further the issues being raised by the Fourth Defendant relevant to the grant of leave and undue delay can be fully ventilated at the substantive hearing.
8. Counsel for the Second Plaintiff was not present in Court because of a court commitment. However, the Court was informed from the bar table by Counsel for the First Plaintiff that the Second Plaintiff supported the submissions of the First Plaintiff.
9. The second application before the Court is the Plaintiffs’ Notice of Motion filed 9 December 2024 seeking that this proceeding be consolidated and/or heard together with proceeding WS 5 of 2017 and OS 300 of 2012 currently in the docket of Mahail J. The parties agree, that if the Fourth Defendant’s application filed on 6 December 2024 is dismissed, then these proceedings should be so transferred.
   

CONTEXTUAL BACKGROUND

10. To properly respond to the submissions made on behalf of the parties it is necessary to outline in some little detail the background to this matter.
11. The dispute concerns 16.5123 hectares of land from within Portion 675, Milinch Granville, Fourmil Moresby, NCD, commonly known as Taurama Barracks which has been used by the Second Plaintiff since at least 1964.
12. The First Plaintiff was incorporated to operate and manage the Second Plaintiff’s home ownership scheme through Comrade Trustee Services Limited. It is currently undertaking a housing scheme for current and retired soldiers. The project began in 2015 however by 2017 works had ceased because of legal proceedings.
13. On 12 March 2014 the Land Board advised the First Plaintiff that its application for a State lease over Portion 675 was successful. The decision to grant the State lease was made and published in the National Gazette on 4 June 2014 and registered on 4 August 2014.
14. Following a survey of the land it was found that Portion 675 was in fact 69.0241 hectares, not 16.5123 hectares, in size. The State lease held by the First Plaintiff was then amended to reflect the proper land size.
15. These proceedings involve a challenge to the compulsory acquisition of the 16.5123 hectares from within Portion 675. The land was purportedly acquired from the Gorobe Kae ILG notwithstanding that the First Plaintiff’s registered lease over Portion 675.
16. On 18 August 2014 the Fourth Defendant commenced proceedings OS 571 of 2014 claiming that Portion 675 was customary land.
17. On 2 March 2016, the First Plaintiff who was not named as a party, sought to be joined.
18. On 8 April 2016 the entire proceedings were dismissed and costs ordered against the Fourth Defendant. The First Plaintiff asserts that those costs have never been satisfied.
19. On 5 September 2015 the Fourth Defendant commenced proceedings WS No 1354 of 2015. It discontinued those proceedings on 7 December 2016.
20. On 13 January 2017 the Fourth Defendant commenced proceedings WS 5 of 2017 seeking orders for compensation for the acquisition of Portion 675 in 1964, later amended to seek specific performance of a Deed dated 20 July 2017 wherein the former Acting Secretary agreed to make a payment to the Fourth Defendant for the acquisition of the 16.5123 hectares of land. The First Plaintiff was not named as a party.
21. On 10 June 2017 a decision was made under the hand of the then Acting Secretary of the First Defendant, Mr Tiri Wanga, as delegate for the relevant Minister to compulsorily acquire the 16.1523 hectares of land.
22. On 23 October 2017 Mr Wanga wrote to the Chairman of the Fourth Defendant advising him inter alia that his Department had on 10 April 2017 effected a formal compulsory acquisition of 16.5123 hectares out of the total 68.998 hectares of Portion 675, being the Taurama Barracks Married Quarters, the balance 52,486 hectares deemed customary land owned by his clan, and that the Urban Development Lease granted to the First Plaintiff “is held in direct breach of the law which my department is willing to have corrected immediately.” In the penultimate paragraph of the letter Mr Wanga said:

My department will now undertake the process as provided under the Land Act 1996 to notify Toea Homes Limited to surrender the lease forthwith to the Registrar of Titles for immediate cancellation.

23. The First Plaintiff who was the holder of a registered State lease for Portion 675 asserts it was not notified to surrender its lease and continues to hold a registered state lease for Portion 675. No such notification has been placed in evidence, including by the First Defendant who had his staff conduct relevant searches. Nor is the First Plaintiff listed on page 3 of Mr Wanga’s letter to the Chairman of the Fourth Defendant as one of the persons or entities copied in on the relevant letter.
24. The Fourth Defendant asserts that a copy of this letter was provided to the Second Plaintiff in 2017. It relies in that regard on page 3 of the letter, the Commander of the PNG Defence Forces listed as one of those purportedly sent a copy of the letter. There is no evidence that the Commander was sent or received a copy of the letter. The Second Plaintiff deposes through the current Commander of the PNG Defence Force to many legal proceedings and disputes among purported landowners. He disposes to having knowledge of the decision until about April 2024.
25. On 26 April 2018 Gazette Notice G268 purported to compulsorily acquire 16,5123 hectares of land within Portion 675. The First Plaintiff asserts that it had no knowledge of the Gazette Notice. The Fourth Defendant asserts knowledge can be imputed by it being a public document.
26. On 17 May 2019 the First Plaintiff filed summary ejectment proceedings in the District Court to remove people occupying Portion 675.
27. On 11 March 2020 the District Court granted the summary ejectment relief and awarded costs against the Fourth Defendant which the First Plaintiff asserts have not been settled.
28. On 19 March 2020 the Fourth Defendant appealed the decision of the District Court, that appeal to the National Court dismissed on 22 July 2021. The First Plaintiff submits that costs were awarded which have not been paid.
29. On 31 August 2021 the Fourth Defendant filed an appeal to the Supreme Court against the decision of the National Court with respect to the upholding of the summary ejectment order. The appeal was discontinued.
30. On 10 June 2022 lawyers for the First Plaintiff assert that it came to its attention that proceedings OS 300 of 2021 instituted by the Fourth Defendant on 23 December 2021 was listed in the court diary. An urgent search revealed that the proceedings sought declaratory orders the effect of which was to cancel the State lease held by the First Plaintiff for Portion 675, the First Plaintiff not listed as a party. On application by the First Plaintiff filed 27 June 2022 the First Plaintiff was joined as a party to the proceedings.
31. The First Plaintiff asserts that after being joined to proceedings OS 300 of 2021 it became aware of proceeding WS 5 of 2017.
32. The Fourth Defendant asserts that following its joinder the First Plaintiff was served with court documents on 27 June 2022, the notice of compulsory acquisition dated 10 June 2017 and the Gazette publication of that decision dated 26 April 2028 forming part of the evidence that was served at which time the First Plaintiff had notice. The First Plaintiff accepts its lawyers were served but denies that documents which were exhibits to an affidavit that formed part of the material served was proper notice and that it was not until late April 2024 it became aware of the compulsory acquisition decision and its gazetting.
33. It is asserted by the First Plaintiff that the Second Plaintiff also had no knowledge of the purported compulsory acquisition until it was so advised by lawyers for the First Plaintiff in about May 2024.
34. The Second Plaintiff applied to be joined to the proceedings WS 5 of 2017 in about June 2024.
35. On 7 October 2024 the First Defendant deposes to having no knowledge of the relevant issues as to the purported compulsory acquisition of the 16.5123 hectares of land until shortly before he swore his affidavit on 3 October 2024. On his evidence, having searched for the relevant documents, Mr Wanga did not hold the delegated powers of the Minister at the time the compulsory acquisition was gazetted. The First Defendant did not put into evidence any documents to the effect that Mr Wanga or any other person in his department had notified the Plaintiffs of the compulsory acquisition nor taken the steps under the Land Act as outlined in his letter to the Chairman of the Fourth Defendant dated 23 October 2017, including any request that the First Plaintiff surrender its lease for cancellation.
36. On 6 June 2024 Makail J made orders that proceedings WS 5 of 2017 and OS 300 of 2021 be consolidated and tried together.
37. On 18 September 2024 the First and Second Plaintiff initiated proceedings for leave for judicial review seeking to challenge the decision. On 12 November 2024 the Court granted leave for judicial review of the decision.
38. On 14 November 2024, the Plaintiffs filed their Notice of Motion Pursuant to Order 16 r 5 of the NCR for substantive relief.

CONSIDERATION

39. The Fourth Defendant’s Notice Motion seeks orders pursuant to Order 16 r 13(13)(2)(a) and (b)(i) and Order 16 r 4 of the NCR and section 155 (4) of the Constitution.
40. Order 16 r 13 (13)(1) and (2) provides:

(1) Motion

All interlocutory applications shall be made by Notice of Motion. The practice and procedure shall be those prescribed by the National Court Rules from time to time.

(2) Summary disposal

1. Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under Order 16 of the National Court Rules or under these Rules or on any other competency grounds.

b. The Court may summarily determine a matter:

(i) on application by a party; or

(ii) on the Court's own initiative; or

(iii) upon referral by the Registrar in accordance with the procedure set out in (3) below.

...

41. Order 16 Rule 4 of the NCR is titled “Delay in applying for relief”. It provides as follows:

(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant—

(a) leave for the making of the application; or

(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(2) In the case of an application for an order of certiorari to remove any judgement, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.

(3) Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.

42. Section 155 (4) of the Constitution which is titled THE NATIONAL JUDICIAL SYSTEM provides:

...

(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

...

43. As earlier noted and in summary, it is submitted on behalf of the Fourth Defendant that the proceedings should be dismissed because the Plaintiff failed to comply with the rules under Order 16 r 3(2) in that the Originating Summons should not plead any other relief other than leave be granted to apply for judicial review, the rules not allowing for substantive relief sought such as certiorari, mandamus or declaration to be pleaded, the Plaintiffs doing just that in its Originating Summons.
44. Further the decision to be reviewed should be properly particularised, the Plaintiffs pleading failing to make clear which decision the Plaintiffs are challenging, namely the decision of the then Secretary of 10 June 2017 or the publication on 26 April 2018, actions by different state agencies.
45. It is further submitted that the reliefs sought lack utility and that the decision sought to be judicially reviewed has already been considered and tested in a court of competent jurisdiction.
46. Having considered the evidence and submissions I propose to dismiss the Fourth Defendant’s motion because:
    1. as currently argued the submissions advanced in support of dismissal of the proceedings lack merit; and
    2. the issues being raised should not be raised by way of interlocutory application but at the substantive hearing, the grant of leave not preventing the Court on the hearing of the substantive application for judicial review from dismissing the application by reason of the Court concluding that leave was not justified (Angui v Wagun [2011] N4194; Marape v O’Neill [2016] SC 1493).
47. With respect to the specific complaints raised by the Fourth Defendant, the Originating Summons filed 18 September 2024 is in the following terms:
    1. Pursuant to Order 16 Rule 3(1) of the National Court Rules, leave be granted to the plaintiffs to ally for Judicial Review (including without limitation for orders for certiorari, mandamus and prohibition) of the actions and decision of the first defendant as follows:

(a) the decision of the first defendant’s predecessor as delegate of the second defendant’s predecessor, as purportedly made on or about 10 June 2017 and published in the National Gazette G268 dated 26 April 2018 in accordance with section 12(1) of the Land Act 1996 to compulsory acquire 16.5123 hectares of the first plaintiff’s State Lease over Portion 675, Milinch Granville, Fourmil Moresby, National Capital District.

2. The first, second and third defendants to pay the plaintiffs’’ costs of this proceedings.
3. Such further or other order as the Court deems meet
4. Time to abridge.
48. It is settled law that in terms of the procedure for grant of leave for judicial review an application or leave made by Originating Summons should not plead any other relief, other than leave for judicial review of the subject decision which should be particularised (Peter Makeng v Timbers (PNG) Ltd [2008] N3317; Innovest Limited v Pruaitch [2014] PGNC288; N5949; Kalinoe v Paul Paraka Lawyers [2014] PGSC;SC1366). However, the grant of leave for judicial review is an exercise in judicial discretion, one exercised within the framework of legal principle, the facts of the case and fairness when making a ruling (O’Neill v Eliakim [2016] SC1524). A fair reading of the Originating Summons suggests that the reference to the relief, placed in brackets, whilst strictly unnecessary, is not one, in the exercise of the Court’s discretion, that could fairly render the pleading an abuse nor suggest a prejudice to the defendants. In Innovest, for example, an authority relied upon by the Fourth Defendant, the learned Judge found the Originating Summons before him to be inadequately pleaded in that it did not meet the requirements of Order 16 r 3(2) by failing to plead the decision to be reviewed. However, in granting leave, the learned Judge determined that the defect was not ultimately fatal, the decision to be reviewed having been pleaded in the Statement in Support and capable of remedy by amendment. Further the pleading had satisfied its basic purpose, which was to sufficiently inform the defendants to enable them to file a defence. Relevantly, the learned Judge further noted that “the purpose of the Rules is to guide the Court in conducting trials in a fair and just manner in order to dispense justice” to the parties (citing PNBC v Jeff Tole (2002) SC 694).
49. Even if the inclusion in brackets of the relief sought in the Originating Summons before me could be viewed as a defect, it was not a defect that rendered the pleading an abuse, nor one that could be said to give rise to a prejudice to the defendants. In short, there is nothing to suggest the granting of leave was not a proper exercise of discretion at the time made, the Fourth Defendant having taken no steps to Appeal the grant of leave if it viewed the Court’s discretion as having miscarried.
50. Nor in considering the Fourth Defendant’s arguments now advanced in support of its Notice of Motion for dismissal (the Fourth Defendant not having had the opportunity to advance its arguments at the ex parte hearing), is this Court persuaded that it has a jurisdictional basis to set aside the grant of leave. I shall return to that later.
51. The further submission of the Fourth Defendant that the decision is not particularised thus amounting to an abuse of process is likewise unpersuasive. The decision to be reviewed is clear on a plain and fair reading of the Originating Summons (see also of the Plaintiff’s Statement Pursuant to Order 16 r 3(2)(a) filed 18 September 2024 at [2], [3.1]-[3.3], [4.92]-[4.1000], [5.36.18]; [5.36.24]; see also Grounds of Review at [5]). It is “the decision of the First Defendant’s predecessor as delegate of the Second Defendant’s predecessor made on or about 10 June 2017 and published in the National Gazette G268 dated 26 April 2018 in accordance with section 12(1) of the Land Act 1996 to compulsorily acquire 16.5123 hectares of the First Plaintiff’s State Lease over Portion 675 Milinch Granville, Fourmil Moresby, National Capital District”. (underlining added)
52. The notice of compulsory acquisition while dated 10 June 2017was not published and thus not given legal effect until 26 April 2018. The decision dated 10 June 2017 was issued under the hand of Mr Wanga, the then Acting Secretary for Lands and Physical Planning and signed by him as a Delegate of the Minister for Lands and Physical Planning (Annexure F to the Affidavit of the First Defendant filed 7 October 2024). The notice as gazetted dated the 26 April 2018 publishes the notice of compulsory acquisition dated 10 June 2017 under Mr Wanga’s name as Delegate (Annexure K to the Affidavit of the First Defendant filed 7 October 2024). There should be no confusion on the part of the Fourth Defendant.
53. In the circumstances as outlined, the Court is unable to conclude that the Fourth Defendant is unfairly hampered in mounting its defence or unable to properly engage with the matters comprehensively pleaded by the First Plaintiff in its Statement in Support, either by reason of a lack of particularisation and confusion based on whether the Plaintiffs challenge is to the decision of 10 June 2017 or the publication of the decision on 26 April 2018.
54. The evidence of the First Defendant is clear and enables the Fourth Defendant to properly engage with the issues. On his evidence on the 7 September 2017 the then Minister for Lands and Physical Planning revoked with immediate effect his delegated powers that had been delegated in accordance with the National Gazette No G 645 dated 7 October 2015 and simultaneously further revoked all other delegations past and present specified under other land legislation (see Annexure I and [12] his affidavit filed 7 October 2024). On his evidence Mr Wanga did not have the delegated powers of the Minister to do what he did and the publication of the notice of compulsory acquisition as such was wrong in law and of no legal effect.
55. Nor is the Court able to conclude that these proceedings were improperly brought by reasons of the subject matter of these proceedings being dealt with in either WS 5 of 2017 or OS 300 of 2021. These proceedings concern a challenge to the compulsory acquisition of land a decision with the Plaintiffs seek quashed whereas WS 5 of 2017 concerns a claim for specific performance to be paid compensation and OS 300 of 2021 seeks declaratory relief that does not involve a challenge to the acquisition of the relevant land.
56. Turning to the Fourth Defendant’s further challenge on delay, it is submitted that pursuant to Order 16 r 4(2) of the NCR in the case of an application for an order of certiorari the relevant period to bring the proceedings is four (4) months. It is contended that the Plaintiffs have failed to discharge the onus on them in providing a reasonable explanation for the delay of some years where:
    1. the Second Plaintiff was provided with a copy of the letter from Mr Wanga to the Fourth Defendant dated 23 October 2017 confirming acquisition; and
    2. the First Plaintiff joined the proceedings OS 300 of 2021 on 17 June 2022, the Court documents having been served on them on 27 June 2022, where the decision formed part of the evidence in the documents served; and
    100. the decision of 10 June 2017 became public information when gazetted on 26 April 2018.
57. The Court finds this challenge to also be without merit. When and how the First and Second Plaintiffs became aware of the decision is a disputed fact in these proceedings. It is one that should be considered at the substantive hearing stage when all of the evidence is before the Court at a time when it is open to the Court to consider more fully issues that may not have been considered at the hearing for the application of leave,
58. It is the Plaintiffs’ case that the delay was caused not only by the failure of the First Defendant to advise the Plaintiffs at any time of the decision he took in 2017 but that the Fourth Defendant’s own actions in its conduct of its litigation in the other proceedings contributed to that delay (see Part 6 of the First Plaintiff’s Statement in Support filed 18 September 2024). It is the First Plaintiffs case that while its lawyers were served with a large volume of documents in July 2022, containing an annexure of the relevant Gazette Notice, knowledge of the acquisition did not come to its attention until about April/May 2024. The First Plaintiff’s evidence in support is in the form of an affidavit of Mr Charlie Gilichi, its Chief Executive Officer, filed 18 September 2024, verifying the statement or facts pleaded in the Statement in Support by reason of a review of the corporate records held by the First Plaintiff and his review of all documents in all of the legal proceedings to which the company was a party. In his further affidavit filed 18 September 2024, he deposes inter alia to the circumstances relevant to the issue of delay. On his deposition, supported by a volume of annexed documents, it was not until approximately April 2024 through an affidavit on the Court file relating to WS 5 of 2017, that the relevant Gazette Notice of the compulsory acquisition came to the attention of the lawyers for the First Plaintiff (see [167] – [178] of his affidavit). It was at that time that their lawyers immediately informed the Second Plaintiff who then engaged its own lawyers.
59. It is the evidence of Commodore Philip Polewara, Acting Commander of the PNG Defence Force that the Second Plaintiff was unaware of the relevant notices until after it was joined as a party in proceedings WS 5 of 2017 and OS300 of 2021 on 17 April 2024 and 4 June 2024 respectively. The affidavit of Commodore Polewara, filed 27 September 2024, verifying the facts in the Statement in Support of the Second Plaintiff is to the effect that the Second Plaintiff was not aware of the Gazette notice of 26 April 2028 until late April 2024, the delay occasioned by the failure of the First Defendant to advise the Plaintiffs of the decision he took. The Second Plaintiff also lays complaint against the Fourth Defendants for their conduct initiating proceedings that affected the rights of the Plaintiffs without naming the Plaintiffs as parties, asserting that that since late April 2024 the Plaintiffs had done all they could to ascertain the full factual picture from the various legal proceedings and institute judicial review proceedings with expedition.
60. Further, the basis upon which the State did not object to the grant of leave for judicial review was that the First Defendant was not aware until shortly before the filing of his affidavit on 7 October 2024 of relevant matters as earlier outlined.
61. The submissions on behalf of the Fourth Defendant that “it took the Plaintiffs more than seven years to seek to review the decision although they had knowledge of the decisions years prior” ([3] page 1 of written submissions date 18 February 2025) and that the Plaintiffs deliberately misled the court on the relevant facts on undue delay at the hearing of the grant of leave, must be viewed against the background as outlined, the disputes of fact as to when and how the Plaintiffs became aware of the decision and the assertions made with respect to the Fourth Defendant’s contribution, if any, to the delay.
62. The issues in this case highlight the difficulties that too often present in judicial review proceedings, where litigants and lawyers choose to resort to piece-meal interlocutory application when the matter can be properly and conveniently dealt with in substantive proceedings. It is a practice with impacts for the efficient use of court time, access to justice and the timely and cost-effective resolution of disputes. I respectfully concur with the observations of Gavar-Nanu J in Manase v Polye [2021] SC2150 at [48] to the effect that any interlocutory application which should or can be conveniently dealt with in a substantive proceeding is a clear abuse of Court process, being an improper use of Court processes by the parties and their lawyers and as such should be readily dismissed summarily by the Court, even on their own motion. While that case dealt with an election petition matter, the learned Judge noted the applicability of his observations to substantive judicial review applications. Court time is a valuable resource that should be carefully managed. If Court time is freed of unnecessary interlocutory applications, litigants benefit and public trust and confidence in the judicial system is enhanced.
63. It is the submission on behalf of the First Plaintiff that the Fourth Defendant’s Motion is in itself an abuse of process, inter alia by reason of abundant authority that all issues that are dealt with at the leave stage can be heard in full at the substantive stage. Learned Counsel for the First Plaintiff also takes issue with the jurisdictional basis for the Fourth Defendant to file its motion now before the Court.
64. In Todai v Schnaubelt [2017] PGSC37; SC1637, Injia CJ clarified the avenues available to an aggrieved litigant who was not present at the application for grant of leave. While the challenge before the Court was one based on standing, His Honour’s observations have general application. The learned Judge observed that such application may be brought under NCR, O 16 r 13 (2). His Honour said this at [7]):

7. The plaintiffs’ standing is normally determined at the leave stage. However, the application and grant of orders for leave for judicial review normally proceeds ex parte and all interested parties, except the State, are not heard on the question of standing. A person who is not heard in the leave application and is aggrieved by a decision to grant leave for review has several options open to challenge the plaintiff’s standing. First it can be raised before the trial Court at the hearing of the substantive application for review. Second it can be raised in the appeal Court in an appeal from an interlocutory ruling granting leave for judicial review. Third it can be raised in the appeal Court in an appeal from a dismissal of an application to dismiss the judicial review proceedings based on a lack of standing. The appellants in this case have chosen the third option and no question arises from the appellants’ choice of that particular option.

65. The Fourth Defendant had a right to appeal the decision to grant leave. It was an avenue followed in the authority Sekesu Sisapi on which the Fourth Defendant placed reliance. It did not do so.
66. Relevantly in that case, Counsel for the first respondent, whose client had been the beneficiary of the grant of leave for judicial review, conceded that the National Court had been misled on a question of fact that arose at the leave hearing. There is no such concession in the proceedings before this Court. As noted earlier, it is a disputed material fact as to whether the Plaintiffs had knowledge of the notice of acquisition before April/ May 2024. That is clearly a trial issue.
67. The Fourth Defendant has the right to agitate the issues it now raises, including on delay, at the substantive hearing. That, in my respectful view, was the proper avenue to follow in the circumstances of this case. It is at that stage that the Fourth Defendant can ventilate and issues of competency or issues before the Court on the grant of leave, including the requirements for the grant of leave, together with whether the relief being sought is open. No prejudice to the Fourth Defendant could reasonably be asserted by such a course, at least not one that could not be ultimately remedied in costs dependent upon the findings made at trial.
68. While the Court, on application by a party, may summarily determine an application for judicial review on any competency ground (Order 16 r 13(13)(2)(a) and (b)(1)), the Fourth Defendant has failed to make out a proper case for summary dismissal on the basis of substantive or procedural incompetency. Further in my respectful view the Court has no power to set aside the leave granted to the Plaintiffs on 12 November 2024, neither Order 16 r 4 of the NCR or s 155(4) of the Constitution affording the Court a proper jurisdictional basis for doing so. Order 16 r 4 provides that a Court may refuse to grant leave based on delay when considering an application for the grant of leave or any relief sought on the application. Leave has already been granted. Upon grant of leave for judicial review and in filing its Notice of Motion instituting the substantive application, the Originating Summons is no longer alive and pending to be tried. Further s 155(4) of the Constitution can only come to the aid of a party in the absence of any other relevant power or jurisdiction of the Court.
69. The Fourth Defendant’s Motion is an abuse of process because the issues it raises should or could have been conveniently dealt with in a substantive proceeding. The submission on behalf of the First Plaintiff that the Fourth Defendant’s Notice of Motion should be dismissed as an abuse of process is accordingly upheld.
70. With respect to the First Plaintiff’s Notice of Motion filed 9 December 2024, it is proper that these proceedings be transferred to His Honour Justice Makail, given the parties’ agreement to that course in the event that the Fourth Defendant’s Motion was unsuccessful. The Court has a broad discretion to that end where there are common questions of law and fact arising in the different proceedings and where issues of cost and the proper use of judicial resources arise. While the proceedings for judicial review seek to quash the decision for compulsory acquisition, and the causes of action in each of the three proceedings before the Court differ, they involve similar or identical facts, the parties identical, as are the lawyers. Relevantly, His Honour has already ordered that WS 5 of 2017 and OS300 of 2021 be consolidated and/or heard together.
71. It should however be a matter for His Honour, in his discretion, to determine how he should proceed with the three proceedings as opposed to this Court making an order for consolidation and or a single hearing. His Honour is best placed to make that assessment in the circumstances.
72. The Fourth Defendant’s Notice of Motion is unsuccessful. It should meet the Plaintiff’ costs. In my discretion the costs of the First Plaintiff’s Motion to transfer the proceedings should be costs in the cause.

ORDERS

73. The Court makes the following orders:
    1. The Fourth Defendants’ application filed 6 December 2024 is dismissed.
    2. The Fourth Defendant pay the costs of the Plaintiffs and the State of and incidental to the Notice of Motion filed 6 December 2024 on a party and party basis to be agreed or taxed.
    100. Pursuant to Order 16 r 13(13)(1) and Order 16 r 13(14) of the National Court Rules these proceedings be transferred to Makail J.
    4. That the costs of the First Plaintiff’s Notice of Motion filed 9 December 2024 be costs in the cause.
    5. Time to abridge.

________________________________________________________________
Lawyers for the first plaintiff: Dentons
Lawyers for the second plaintiff (No appearance): Kortal Lawyers & Associates
Lawyer for first, second and third defendants: Solicitor-General
Lawyers for fourth defendants: Namani & Associates