SC1072

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 8 0F 2010

SEKESU SISAPI LAND GROUP INC ILG NO 2121
Appellant

V

TURAMA FOREST INDUSTRIES LIMITED
First Respondent

MR PEPI KIMAS, SECRETARY,
DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Second Respondent

MR RAGA KAVANA, REGISTRAR OF TITLES
Third Respondent

Waigani: Mogish J, Cannings J, Gabi J
2010: 31 August, 15 September

JUDICIAL REVIEW – appeal against granting of leave to apply for judicial review – National Court misled on a significant question of fact relevant to delay in filing application for leave – whether National Court decision should be quashed.

The first respondent applied to the National Court for leave to seek judicial review of the decision of the Secretary for Lands and Physical Planning to issue a Special Agricultural and Business Lease to the appellant. Leave was granted and the appellant appealed against the granting of leave to the Supreme Court on various grounds including that the National Court was misled by the first respondent on a significant question of fact relevant to the delay in filing the application for leave, that the first respondent lacked standing and had other avenues of redress available to it, and had failed to establish an arguable case. 

Held:

(1)	The National Court was misled on a significant question of fact relevant to the issue of whether there had been an undue delay, after the first respondent became aware of the decision to grant the lease to the appellant, in filing the application for leave to seek judicial review, in that the National Court was told that the first respondent became aware of the decision in June 2007 (four months before the leave application) whereas, in fact, the first respondent became aware of the decision in June 2001.

(2)	The question of whether there has been undue delay in seeking judicial review is a critical issue that must be considered by the National Court when it exercises its discretion whether to grant leave for judicial review.

(3)	The fact that the National Court was misled on a critical issue is a sufficient reason to quash the decision to grant leave; irrespective of whether the National Court was misled deliberately, negligently or innocently. 

(4)	It was not necessary for the Supreme Court to address the other grounds of appeal. The appeal was allowed, the decision of the National Court quashed, the matter remitted to the National Court and costs awarded to the appellant. 

Cases cited

The following cases are cited in the judgment:

Eddie Tarsie v Dr Wari Iamo (2010) N4033
John Nilkare v Ombudsman Commission (1996) SC498
Melchior Pep v Public Prosecutor (2007) N3128
NCDIC v Crusoe Pty Ltd [1993] PNGLR 139
NTN Pty Ltd v Post & Telecommunication Commission [1987] PNGLR 70
Ombudsman Commission v Peter Yama (2004) SC747
Peter Tupa v Sam Inguba (2006) N3171
Raho Hitolo v Ila Geno (2004) N2700
Sekesu Sisapi Land Group (Inc) v Turama Forest Industries Ltd (2008) SC976

APPEAL

This was an appeal against the granting of leave for judicial review. 

Counsel

J Brooks, for the appellant
A Mana, for the 1st respondent

15 September, 2010 

1. BY THE COURT: This is an appeal against the granting of leave for judicial review. On 13 November 2007 the National Court, constituted by Injia DCJ as he then was, granted leave to the first respondent, Turama Forest Industries Ltd, to apply for judicial review of the decision of the second respondent, the Secretary for Lands and Physical Planning, to grant a Special Agricultural and Business Lease to the appellant, Sekesu Sisapi Land Group Inc. On 17 November 2008 Hartshorn J, sitting as a single Judge of the Supreme Court, granted Sekesu Sisapi leave to appeal (Sekesu Sisapi Land Group (Inc) v Turama Forest Industries Ltd (2008) SC976).

2. The primary grounds of appeal raised by Sekesu Sisapi are that:

•	the National Court was misled by Turama on a significant question of fact relevant to the delay in filing the application for leave;

•	Turama lacked standing;

•	Turama had other avenues of redress available to it; and 

•	Turama failed to establish an arguable case. 

WAS THE NATIONAL COURT MISLED?

3. Turama's counsel, Mr Mana, concedes that the National Court was misled on a question of fact that arose at the leave hearing, but denies that the Court was deliberately misled. The question of fact was: when did Turama become aware of the lease that was granted to Sekesu Sisapi in April 2001? At the leave hearing Turama's then counsel, Ms Dawidi, told the Court that Turama became aware of the decision in June 2007 (four months before the hearing of the leave application) whereas, in fact, Turama became aware of the decision in June 2001. The National Court granted leave on the basis that there was no undue delay in filing the application for leave as Turama had only become aware of the lease four months before the application was heard. 

4. Sekesu Sisapi's counsel, Mr Brooks, has submitted before us that the National Court was deliberately misled. However, there is insufficient material before us to make a finding to that effect. It is sufficient to say that the National Court was misled, and that it was misled on a significant question of fact relevant to the issue of whether there had been an undue delay after Turama became aware of the decision to grant the lease to the appellant, in filing the application for leave to seek judicial review. 

5. The question of whether there has been undue delay in seeking judicial review is a critical issue that must be addressed by the National Court when it exercises its discretion whether to grant leave: NTN Pty Ltd v Post & Telecommunication Commission [1987] PNGLR 70; NCDIC v Crusoe Pty Ltd [1993] PNGLR 139; John Nilkare v Ombudsman Commission (1996) SC498; Ombudsman Commission v Peter Yama (2004) SC747; Raho Hitolo v Ila Geno (2004) N2700; Peter Tupa v Sam Inguba (2006) N3171; Melchior Pep v Public Prosecutor (2007) N3128; Eddie Tarsie v Dr Wari Iamo (2010) N4033. 

6. The issue of delay arises under Order 16, Rule 4 (delay in applying for relief) of the National Court Rules, which states:

(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 judgment, 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.

7. In this case Turama was seeking leave to apply for an order in the nature of certiorari to quash the decision of April 2001 to grant the lease to Sekesu Sisapi. The "relevant period" for the purposes of this Rule was four months after "the proceeding". The lease was granted in April 2001 and four months after that was August 2001. The application for leave was not filed until October 2007: more than six years after the end of the relevant period. The National Court was therefore obliged to consider the matters set out in Rule 4(1), ie whether granting the relief sought:

•	would be likely to cause substantial hardship to any person;

•	would be likely to substantially prejudice the rights of any person; or 

•	would be detrimental to good administration.

8. The National Court failed to address these matters and its failure to do so was solely attributable to it being misled on a material question of fact by Turama's counsel. 

9. We consider that the fact that the National Court was misled on the critical issue of whether there was undue delay by Turama in filing the application for leave is a sufficient reason to quash the decision to grant leave. This is so, irrespective of whether the National Court was misled deliberately, negligently or innocently. 

OTHER ISSUES

10. It is unnecessary to address the other grounds of appeal – that Turama lacked standing, had other avenues of redress available to it, and failed to establish an arguable case. The decision to grant leave was made on an erroneous factual basis and cannot be allowed to stand. We will uphold the appeal, and quash the decision to grant leave. 

11. That raises the question of whether to substitute a decision on leave for the decision of the National Court. If we had found that the National Court was deliberately misled we could have done that. But as we have not made such a finding we do not consider that it is appropriate to step into the shoes of the National Court and exercise its discretion whether to grant leave. We will order that Turama's application be remitted to the National Court for rehearing.

12. As to costs, although Sekesu Sisapi will not obtain the principal relief (refusal of the leave application) it has sought, it has succeeded in showing that the decision to grant leave was made in error and that the error was attributable to Turama. Sekesu Sisapi will be awarded costs. 

ORDER 

1.	The appeal is allowed.

2.	The order of the National Court of 13 November 2007, granting leave for judicial review to the first respondent, is quashed.

3.	The first respondent's application for leave to seek judicial review is remitted to the National Court.

4.	Costs of the appeal are awarded to the appellant, to be paid by the first respondent on a party-party basis, to be taxed if not agreed. 

Judgment accordingly.

_____________________________________________
Gadens Lawyers: Lawyers for the appellants
Allens Arthur Robinson Lawyers: Lawyers for the First Respondent