Niiella Enterprise v National Physical Planning Board [2025] PGNC 61; N11182 (28 February 2025)

N11182

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 79 OF 2024

BETWEEN:
NIIELLA ENTERPRISE
First Plaintiff

AND:
DANIEL WASWAS
Second Plaintiff

AND:
NATIONAL PHYSICAL PLANNING BOARD
First Defendant

AND:
LINUS BILLY, in his capacity as ACTING CHIEF PHYSICAL PLANNER & DIRECTOR OF PHYSICAL PLANNING
Second Defendant

AND:
JACK BUKUS, SURVEYOR GENERAL
Third Defendant

AND:
SASIVA INDUSTRIAL PARK LIMITED
Fourth Defendant

WAIGANI: PURDON-SULLY J
11, 28 FEBRUARY 2025

JUDICIAL REVIEW – Application for leave for judicial review – State contests four requirements for grant of leave – grant of leave refused – Plaintiff fails to meet mandatory requirement for standing – even if Plaintiffs had demonstrated standing requirements with respect to undue delay and exhaustion of administrative avenues of review not met – application refused

Cases Cited
Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2022] SC2280
Ekip v Gamato [2017] SC1594
Geno, Lawton and Mambu v The State [1993] PNGLR 22
Innovest Limited v Pruaitch [2014] PGNC288; N5949
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Peter Makeng v Timbers (PNG) Ltd [2008] N3317
R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1981] 2 WLR 722
Rei v Arutu Tatana Incorporated Land Group Inc [2019] PGNC 394; N8150

Counsel
Mr E Waifaf for the plaintiffs
Mr P Bati for the State

1. PURDON-SULLY J: This is my ruling on an application by the Plaintiffs for leave for judicial review.
2. While the background facts are somewhat complicated, the main controversy concerns an asserted boundary encroachment and a dispute between the Plaintiffs and the Fourth Defendant who have competing sub-division plans. It is the Plaintiffs’ case that one was undertaken lawfully and the other, undertaken by the Fourth Defendant, tainted by fraud.
3. The Second Plaintiff is the Managing Director of the First Plaintiff, a company involved in real estate development, building construction and earthworks in Papua New Guinea.
4. The Plaintiffs seek leave to challenge a decision of the First and Second Defendants made on 6 May 2019 to approve a sub-division of customary land owned by the Kaevaga Clan in the National Capital District on application by Kaevaga ILG, which decision created allotments for designated parcels of land (at [5] of the Second Plaintiff’s affidavit filed 31 December 2025).
5. The Second Plaintiff annexes at “B” to his affidavit a copy of a Notification of Determination of an Applicant for Planning Permission, addressed to the Chairman of Kaevaga ILG and dated 3 May 2019 and approved on 6 May 2019, which application approved the sub-division of the customary land.
6. The Plaintiffs assert however that the boundaries dispute it has with the Fourth Defendant has been caused by the Fourth Defendant and not the Kaevaga Clan.
7. The Plaintiffs are also challenging a decision of the Third Defendant on 14 December 2021 approving and registering the Fourth Defendant’s Survey Map for Portions 4740 and 4794 of the land following the making of the first decision (at [6] of the Second Plaintiff’s affidavit).
8. By Amended Originating Summons filed on 31 December 2024 the Plaintiffs seek:
   • (a) Leave be granted to the Plaintiffs pursuant to Order 16 Rule 3 of the National Court Rules (NCR) and s 155(4) of the Constitution to apply for judicial review of the purported decision of the First and Second Defendants to approve the Fourth Defendant’s sub-division Plan of Portion 3646C to create allotments for designated parcels of land dated 3 May 2029 and approved on 6 May 2019 (first decision);
     
   • (b) Further, leave be granted to the Plaintiffs pursuant to Order 3 Rule 1 of the NCR and s 155(4) of the Constitution to apply for judicial review against the purported approval given by the Third Defendant to the Fourth Defendant’s Survey Map contained in Catalogue No 49/4138 for Portions 4740 to 4794, Milinch of Granville, Fourmil of Moresby, National Capital District approved and registered on 14 December 2021 (second decision).
     
   • (c) Costs.
9. The leave application is supported by an Amended Statement in Support and Affidavit in support of Daniel Waswas filed 31 December 2024 together with an Amended Notice of Application for leave to apply for Judicial review to the Secretary for the State. The Plaintiffs further rely upon an Affidavit of Service of Kepewan Aret filed 7 January 2025.
10. The Plaintiffs seeks leave to challenge the decisions on the following grounds:
    1. the first decision on the grounds that it was ultra vires in that it breached the provisions of ss 17(1)(a) & 42 of the National Physical Planning Act 1989
    2. the second decision on the ground that it breached the provisions of ss 4 and 37A of the Survey Act 1969 as amended and failed to comply with ss 6, 8, 9, 10, 11 and 12 of the Survey Coordination Act, Chapter 203 and s 13 of the Survey Co-ordination Regulation;
    100. fraud it being asserted that the Fourth Defendant received the approvals from the First, Second and Third Defendants by fraud;
    4. on the ground that the first and second decisions had no legal effect by virtue of the decision in Rei v Arutu Tatana Incorporated Land Group Inc [2019] PGNC 394; N8150 (incorrectly described in the Amended Statement in Support as “Reiv Aria Tatan ILG [2019] PNGNC 394”.
11. The State who by virtue of s 8 of the Claims by and Against the State Act and Order 16 r 3 of the NCR has a right to be heard on the application, opposes the grant of leave on all four requirements for leave. It also takes issue with the particularisation of the second decision sought to be reviewed, asserts that the Statement in Support is convoluted and confusing and lacks an evidentiary foundation for the relief sought and that the application is an abuse of process by reason of the Plaintiffs’ raising identical issues and facts in proceedings OS No 97 of 2024 Sasiva Industrial Limited v Daniel Waswas & Ors which is an ongoing proceeding.

CONSIDERATION

12. It is established legal principle that the purpose of seeking leave for judicial review is to prevent Court time being wasted with unmeritorious applications and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were pending even though misconceived (Geno, Lawton and Mambu v The State [1993] PNGLR 22 citing with approval Lord Diplock in R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1981] 2 WLR 722 at 739).

In order to succeed on the application for leave the Plaintiffs must show that they have a sufficient interest in the decisions to be reviewed, have exhausted all available statutory and/or administrative avenues of review, have not delayed to file their application and that there is an arguable case (Peter Makeng v Timbers (PNG) Ltd [2008] N3317; Innovest Limited v Pruaitch [2014] PGNC288; N5949).

13. With respect to the first requirement that the Plaintiffs must have standing (locus standi) to sustain judicial review proceedings, Order 16 r 3(5) of the NCR requires an applicant to demonstrate that it has a sufficient interest before the Court may exercise its discretion to grant leave.
14. Whether the Plaintiffs have a sufficient interest in the subject matter before the Court is a question of fact and law, a matter of fact and the degree of the relationship between the Plaintiffs and the subject matter of the complaint having regard to the circumstances of the case.
15. In Ekip v Gamato [2017] SC1594 the Supreme Court (Hartshorn J, Polume-Kiele J Shepherd J) said:

12. As to what constitutes “sufficient interest”, this has been the subject of considerable judicial consideration. In our view, an indication as to the intended interpretation of “sufficient interest” is evident from other judicial review Rules that concern the interest of a party to a judicial review proceeding. One of these Rules is Order 16 Rule 13(5) National Court Rules which concerns the nature of that interest. It refers to service on, “... persons directly affected by the decision the subject of the review,” : O’Neill v. Eliakim (2016) SC1539 at [44].

13. That “sufficient interest” is to be interpreted as a direct interest is reflected in the decision of Alois Kingsley Golu v. National Executive Council (2011) N4425. At [6], Gavara Nanu J said:

“First the plaintiff must show that he has sufficient interest in the decision vis., he must show that he is grieved (sic) by the decision and that the decision affects his rights and interests.”

14. This decision has been followed in Abaijah v. Mana (2015) N6071, among others.

16. A more recent consideration of the authorities and relevant legal principles on the subject was outlined in Wapi v Kwa [2022] PGNC 597; N10362 (23 November 2022) where Kandakasi DCJ at [20] said as follows:

There is a large body of case law clearly establishing the principles governing the issue of a person’s locus standi or standing to bring judicial review proceedings. Firstly, locus standi is a threshold issue which must be determined first: See Inland Revenue Commissioners; ex parte National Federation of Self-Employed and Small Business Limited [1981] UKHL 2; [1981] 2 WLR 722 per Lord Diplock, as adopted and applied in Jim Kas v. Sevua (2000) N2010 by Sakora J. Secondly, depending on the nature of the relief being sought, a plaintiff will in general have locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests and perhaps to his social or political interests: See Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980) 146 C.L.R. 493; 54 A.L.JR. 176, per Mason J; Papua New Guinea Air Pilots Association v. The Director of Civil Aviation and the National Airline Commission trading as Air Niugini [1983] PNGLR 1, per Andrew J. Thirdly, the cases are various and so much depends in each case on the nature of the relief sought because, what is sufficient interest in one case may be less than sufficient in another: See Robinson v. The Western Australian Museum (1977) 138 C.L.R. 283, per Mason J. Fourthly, the Courts have on many occasions expended (sic) the categories or situations in which a person could have locus standi simply by reference to having ‘sufficient interest’ in the matter, which may not necessarily be a right: See NTN Pty Limited v. The Board of Post & Telecommunications Corporation [1987] PNGLR 70, per Wilson J; Arawe Logging Pty Ltd v. The State [1988-89] PNGLR 216, per Brunton AJ; and National Capital District Interim Commission v. Crusoe Pty Ltd [1993] PNGLR 139, per Brunton J. Fifthly, the concept of “sufficient interest’ is essentially a mixed question of fact and law and the degree of the relationship between the Plaintiff and the subject matter of his complaint. Generally, a plaintiff will have standing if he can show that he has a reasonably arguable claim that by an invalid exercise of statutory power, some private right in law has been affected or that he has suffered some prejudice: see Steamships Trading Limited v. Garamut Enterprises Ltd (2000) N1959, per Sheehan J as endorsed by the Supreme Court in Aquila Sampson v. NEC (2019) SC1880, per Anis J with Kassman and Toliken JJ agreeing; David Kabomyap Allolim v Biul Kirokim (2018) SC1735, per Batari J, David & Frank JJ. Sixthly, the right to invoke the Court’s supervisory jurisdiction is not restricted to protection of personal rights. It can extend to more public issues. In determining standing, Court decisions in our jurisdiction lean strongly towards the granting of locus standi to citizens seeking to complain of what is seen as breaches of laws of the country: See Steamships Trading Limited v. Garamut Enterprises Ltd (supra), endorsed by the Supreme Court in Aquila Sampson v. NEC (supra). Finally, the relevant decisions on point show an inclusive rather than an exclusive view of applicants with standing, holding that, challenges by citizens to the validity of decisions of statutory or public authorities should not too readily be excluded from the Courts on grounds of lack of direct personal interest or right. Very often determination of standing is only possible with an examination of the complaint itself: Steamships Trading Limited v. Garamut Enterprises Ltd (supra) as endorsed by the Supreme Court in Aquila Sampson v. NEC (supra).

17. It is submitted on behalf of the Plaintiffs that they are directly affected by the two decisions and thus have a sufficient interest for the purpose of order 16 r 3(5) inter alia because:
    1. The Second Plaintiff is the Managing Director and Shareholder of the First Plaintiff which is a locally owned real-estate developer on the country which registered its survey Map Portion 3532C contained in Catalogue No 49 of 3501 dated 15 December 2015 and Portion 4563C contained in Catalogue No 49/4058 dated 26 November 2020.
    2. The Fourth Defendant’s Survey Map contained in Catalogue No 49/4138 dated 14 December 2021 encroached into the Plaintiffs’ surveyed lands. The Fourth Defendant received decisions giving approval to its Sub-division Plans from the First and Second Defendants. The Fourth Defendant’s Survey Plan was approved by the Third Defendant and this encroached into the Plaintiffs’ boundaries in Portion 3532C and 4563C.
    100. As a result of the Fourth Defendant’s complaint, it also orchestrated the destruction of properties belonging to the Plaintiffs and their business partner valued over K1.8M.
    4. The first decision did not comply with statutory procedures and required approvals, the second decision tainted with fraud as the approval of the Survey Map was signed by a person who was not a public servant at the time of signing of the approval which was a requirement and the Fourth Defendant further conspired with the First and Second Defendants to evade land taxes for Portions 4740 and 4794.
18. It is submitted on behalf of the State that the Plaintiffs have not demonstrated that they have a sufficient interest in the decisions. This is because:
    1. In order to challenge the first decision, the Plaintiffs must show that they have an interest in Portion 3646C and there is nothing in the Statement in Support or affidavits in support to indicate this.
    2. The gist of the Plaintiffs’ argument is that the Fourth Defendants land boundary encroaches on to its land, however that does not in itself demonstrate that the Plaintiffs’ interest was affected by the first decision. The first decision relates to the “sub-division” of land meaning the land the subject of the first decision to sub-divide had already been identified (including its boundary) and legally registered. The Fourth Defendant’s land would have been surveyed, identified and the boundary registered even before a sub-division was considered. The Plaintiffs are not challenging any decision which would have originally identified the Fourth Defendant’s land and its boundary. Challenging the first decision would not in any way invalidate the initial decision to register the Fourth Defendant’s land and boundaries before sub-division.
    100. Further, any issue relating to encroachment of boundary would not be resolved by setting aside the first decision relating to sub-division. The Plaintiffs’ claim to set aside the first decision would suggest that they have an interest in the land however the Plaintiffs have not provided any evidence to suggest they claim ownership of the Fourth Defendant’s land. This is supported by the fact that the Plaintiffs have not sought any relief in their Amended Statement to enforce any right that they may claim has been affected by the decisions the subject of the application for leave.
    4. Further, the first decision concerns Kaevaga ILG who have not been named as a party the proceedings with no relief sought against it.
19. On the basis that “sufficient interest” is to be interpreted as a direct interest as referred to Ekip v Gamato (supra) or as an actual or apprehended injury or damage to property or proprietary rights, to business, economic, social or political interests as described in Wapi v Kwa (supra), the Plaintiffs are not persons who have demonstrated a “sufficient interest” to bring these proceedings to challenge the first decision. The Court accepts the submissions of the State in this regard.
20. The issue between the Plaintiffs and the Fourth Defendant concerns a boundary dispute. It is one that is currently before the Deputy Chief Justice in OS No 97 of 2024, the Fourth Defendant having filed proceedings to validate its boundaries and Certificate of Titles issued in accordance with the relevant Survey Map. Orders have been made that a joint survey be conducted to ascertain the boundaries. That process should clarify the correct boundaries.
21. It is the Plaintiffs case however that it was as a consequence of those proceedings that the Plaintiffs discovered irregularities and fraud with respect to the approvals (see Amended Statement in Support at 3.10 -3.12). However, the first decision, which the Plaintiffs seek to quash by way of the relief of certiorari in these proceedings, was an approval made in favour of Kaevaga ILG on its application. As submitted on behalf of the State they have not been joined as parties to these proceedings and would be directly by any decision to quash approvals granted on its application. Further, the Plaintiffs claim no interest in the land the subject of the first decision which relates to Portion 3646C and seek no relief by way of declaration that they hold such an interest. The Plaintiffs are not directly affected by the first decision in circumstances where on their own case, the Plaintiffs’ land - surveyed pieces of customary land demarcated and allocated by the Kaevaga Clan to them and then lodged with and approved by the Third Defendant - related to Portions 3532C and 4563C (Amended Statement in Support at [3.3]).
22. As submitted on behalf of the State, challenging the first decision does not invalidate the decision to register the Fourth Defendant’s land and boundaries before sub-division.
23. While it appears, respectfully, that the Plaintiffs have taken it upon themselves to take up a cause deemed by them to be important and necessary based on a view formed with respect to the purported unfair treatment of the original landowners of the Sasiva Lands and the interests of justice generally to ensure that government institutions and statutory procedures should not be abused and the resultant asserted prejudice to it (see [16]–[17]; [56]-[58] of the Second Plaintiff’s affidavit), it is not one that demonstrates “sufficient interest” for the purpose of judicial review. Nor is it one in the circumstances of this case that could be said to fall within the more expansive view of “standing” that emerges on the case law based on a concerned citizen seeking to challenge decisions of public authorities.
24. Nor, for the same reason, is the Court able to conclude that the Plaintiffs have evidenced a sufficient interest to challenge the second decision. As noted, the land in possession of the Plaintiffs is Portions 3532C and 4563C. The second decision relates to Portions 4740 to 4794, the Fourth Defendant who is the Plaintiff in OS No 97 of 2024, seeking a declaration that the boundaries of land being Portions 4782 to 4791 in which it is registered proprietor and described in the Survey Map contained in Catalogue No 49/4138 registered on 14 December 2021 is lawful (Annexure M to the Affidavit of the Second Plaintiff filed 31 December 2024). The boundary dispute is a matter being addressed in other proceedings, including by way of an order, as noted, that there be a fresh joint survey undertaken.
25. I accordingly find that the Plaintiffs have not demonstrated the requisite locus standi to challenge the decisions, a mandatory requirement for the grant of leave (Order 16 r 3(5)).
26. As the first requirement for grant of leave has not been established with respect to the Plaintiffs’ standing to challenge the decisions, leave should be refused.
27. Even if I am wrong on my findings on the Plaintiffs’ standing, the grant of leave should be refused as the Plaintiffs have failed to meet two further requirements for a grant of leave.
28. Judicial review is not available if the Plaintiffs have not exhausted other administrative remedies including any statutory appeal procedures available to them (Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122; Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2022] SC2280).
29. With respect to the first decision the Plaintiffs have not met this requirement because s 94 of the Physical Planning Act 1989 (PPA) provides for appeal procedures for “an applicant, or an owner or an occupier of land” (s 94(1) who is aggrieved by a decision of the First Defendant (s 94(1) including “a decision on a planning permission” (s 94(2)(a)).
30. On the evidence of the Second Plaintiff, the Plaintiffs are occupiers of part of the subject land which is owned by the customary landowners of the Sasiva Lands in Motukea, namely the Kaevaga Clan and Daharuna Clan. On his evidence, he has lived on the land since 2015 with the consent of the Kaevaga Clan, a business relationship thereafter developing resulting in permissions being granted to the Plaintiffs to develop part of their customary land.
31. The first decision was a successful determination by the Second Defendant issued under the delegated powers of the First Defendant of an “Application for Planning Permission”. While the relevant notification was addressed to the Chairman of the Kaevaga ILG there is no evidence to assist the Court to otherwise conclude that as an “occupier” of the land, as defined in s 3 of the PPA, purporting to be aggrieved by the decision of the First Defendant, the Plaintiffs did not have a right to appeal the decision to the relevant Tribunal by virtue of s 94(1) and (2)(a) of the PPA. Pursuant to s 95(1) of the PPA the Tribunal was then required to afford the “the appellant, an applicant for planning permission, and owner or occupier of the land to which the appeal relates...” an opportunity to make representations concerning the appeal under s 94 (underlining added).
32. The Plaintiffs did not pursue this avenue.
33. It is submitted on behalf of the Plaintiffs that their application should be treated differently considering the circumstances of the case and the decision the subject of challenge. Reliance is placed on several authorities. In short, it is submitted that this matter falls within the exceptions outlined in those authorities inter alia where there is clear evidence before the Court showing that a public authority has adopted a flawed administrative process and where there is no remedy available for a person who is aggrieved by the flawed administrative process to seek relief through any administrative appeal or review process.
34. That, however, is not the case here. The circumstances of this case do not permit the Court to conclude that this matter falls within an exception to the usual rule and that the processes and procedures prescribed by law, under the PPA and the Survey Act should not have been followed. The submissions advanced on behalf of the Plaintiffs do not, respectfully, address why the Plaintiffs did not avail themselves of the avenues of relief open to them to challenge what they assert were illegally obtained approvals, an established legal requirement for the grant of leave unless there is an exception.
35. Nor is the Court able to accept the submission on behalf of the Plaintiffs that because the dispute lay between two private individuals who have separate sub-division plans and whose boundaries are encroaching, the dispute could not go through the relevant Tribunal.^[1]
36. With respect to the second decision s 38 of the Survey Act 1969 empowers the Surveyor General to authorise for corrections and omissions to be made on the registered surveys. It is in these terms:

38. CORRECTION OF ERRORS.

(1) The Surveyor General may, by written notice–

(a) request a registered surveyor or certified measurer to correct, at his own expense and within the time specified in the notice, an error made by him in an authorized survey; or
(b) instruct another registered surveyor or certified measurer to make the correction, and require the registered surveyor who made the error to pay the cost of the correction.

(2) If a registered surveyor or certified measurer refuses or omits to correct an error within the time specified in a notice under Subsection (1), or omits to pay the cost of the correction of an error when called on to do so, the Surveyor General may recover the reasonable cost of the correction as a debt.

(3) A request or an instruction under this section for the correction of a survey shall not be made after one year from the date of lodgement of the plan of survey with the Surveyor General.

37. There is no evidence that the Plaintiffs have taken steps to request the Surveyor General to correct the alleged errors by making a request that he or she exercise the powers that exist under s 38 of that Act by reason of a purported incorrect and unlawful Survey Map in Catalogue No 41/4138.
38. Having failed to meet this requirement for leave I am satisfied that the grant of leave should be refused.
39. There is a further reason why in my view the Plaintiffs’ application for leave to challenge the first and second decision should be refused. This is because the Plaintiffs have failed to adequately explain the delay in applying for relief. Pursuant to Order 16 r 4 of the NCR, where 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 r 3 is made after the relevant period has expired, the Court may refuse to grant leave for the making of the application (Order 16 r 4(1)(a)).
40. Sub-rule 2 provides that in the case of an order for certiorari to remove any judgment, order, conviction or other proceeding, and order for certiorari being one of the reliefs sought by the Plaintiffs, the relevant period for the purpose of sub-rule (1) is four (4) months after the date of the proceeding.
41. The first decision was made on 6 May 2019 and the second decision on 14 December 2021.
42. The Plaintiffs concede delay (Affidavit of Second Plaintiff at [44]). The Second Plaintiff’s evidence under the heading Reasonable Explanation Undue Delay is found at [35] to [55] of his affidavit filed 31 December 224. At best for the Plaintiffs, their case appears to be that they were unaware of the decisions until enquiries were made during the course of their involvement in proceedings OS No 97 of 2024 (Affidavit of Second Plaintiff at [43]; Amended Statement in Support at [3.12]; see also Plaintiffs’ written submissions at [4.20]). There is no evidence, however, by reference to a date as to when the Plaintiffs became aware of either decision and what steps the Plaintiffs thereafter took (e.g. what date it made its enquiries with the lodgement office of NCDPPB – see Affidavit of Second Plaintiff at [32]-[33]), to assist the Court in assessing whether the delay in bringing these proceedings was undue. It is an assessment that must be determined against the four (4) month period and where the principal object of Order 16 r 4(2) is to ensure that an application is made promptly.
43. The Originating Summons in OS No 97 of 2024 (in evidence) was filed on 1 May 2024. The Plaintiffs filed their Originating Summons, prior to amendment, in these proceedings on 4 September 2024, that is five (5) months later. The onus is on the Plaintiffs to explain the delay, not by assertion but by evidence, and afford a reasonable explanation for it based on that evidence (Innovest Ltd v Pruaitch [2014[ PGNC 288 at [36] (reference incorrectly cited in the Plaintiff’s written submissions at [4.15)). This they have not done. It is not for the Court to try and fill in the gaps in the evidence.
44. Even if standing had been established the grant of leave should be refused on this basis.
45. The matters that have been discussed are dispositive of the matter. It is not thus necessary to consider further the fourth requirement for leave on arguability and the various issues raised by the Plaintiffs and State in support and against that requirement having been met. Nor is it necessary for the Court to consider a further ground raised by the State, namely that the proceedings are an abuse of process by reason of OS No 97 of 2024 being on foot.

ORDERS

46. In consequence this application is not entitled to succeed.
47. The Court makes the following orders:
    1. The application for grant of leave for judicial review is refused.
    2. The Plaintiffs’ Amended Originating Summons filed 31 December 2024 is dismissed.
    3. The Plaintiffs pay the State’s costs on a party and party basis to be agreed or taxed.
    4. Time to abridge.

________________________________________________________________
Lawyers for the plaintiffs: Edward M Waifaf Lawyers
Lawyer for the State: Solicitor General

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^[1] As an aside, if the dispute lay between two private individuals with two separate plans whose boundaries were encroaching it is difficult to understand why the method of resolution adopted by the Deputy Chief Justice to resolve that dispute in OS No 97 of 2024 was not a sensible way forward.