Helifix Group of Companies Ltd v Papua New Guinea Land Board [2012] PGSC 10; SC1150 (24 January 2012)

SC1150

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 13 0F 2010

BETWEEN:

HELIFIX GROUP OF COMPANIES LIMITED
Appellant

AND:

PAPUA NEW GUINEA LAND BOARD
First Respondent

PEPI S KIMAS,
SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Respondent

HON DR PUKA TEMU,
MINISTER FOR LANDS & PHYSICAL PLANNING
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Cannings J, Yagi J, Sawong J
2011: 1 December,
2012: 24 January

JUDICIAL REVIEW – locus standi – whether an applicant for a State Lease has a sufficient interest in a decision of the Land Board to withdraw an application from the list of matters to be considered at a meeting of the Land Board – whether a decision of the Land Board to withdraw an application from the list of matters to be considered at a meeting of the Land Board is a decision susceptible to judicial review.

The Minister for Lands and Physical Planning exempted a portion of land from advertisement for the reason that the appellant had applied for the land for purposes of an urban development lease. The appellant proceeded to make an application for a State Lease over the land, which was gazetted amongst the list of applications to be considered by the Land Board at a forthcoming meeting. Instead of considering the application the Land Board decided, on advice from the Secretary for Lands, and without notice to the appellant, to withdraw the application from consideration. The appellant then applied to the National Court for leave to seek judicial review of that decision. Leave was refused for two reasons: (a) the appellant, being a mere applicant, lacked standing and (b) the appellant did not have an arguable case as the Land Board had not exercised any statutory powers capable of being reviewed. The appellant then appealed to the Supreme Court, arguing that the primary judge erred in law in refusing leave on each of those two grounds.

Held:

(1) The appellant, being a mere applicant for a State Lease, had no right or legitimate expectation capable of protection by judicial review and therefore lacked a sufficient interest in the matter to which the application for leave related.

(2) The decision of the Land Board was not made under any statutory provision and did not amount to a refusal to hear the appellant's application for a State Lease. The decision was a simple matter of administration concerning the management of the business of the Board. Such a matter falls into the area of managerial or administrative discretion. It is not the sort of decision that is susceptible to judicial review.

(3) No error of law was made in refusing leave. The appeal was dismissed.

Cases cited
Papua New Guinea Cases

Darius v Commissioner of Police (2001) N2046
Kas v The State (2000) N2010
Medaing v Muling (2010) N4001
Mondiai v Wawoi Guavi Timber Company Ltd (2006) N3061
Mosoro v Kingswell Ltd (2011) N4450
West New Britain Provincial Government v Kimas (2009) N3834

Overseas Cases
R v Inland Revenue Commissioners; Ex parte National Federation of Self Employed and Small Business Ltd [1981] UKHL 2; [1982] AC 617

APPEAL

This was an appeal against the refusal by the National Court of an application for leave for judicial review.

Counsel

J Haiara, for the appellant
W Mapiso, for the respondents

24 January, 2012

1. BY THE COURT: This is an appeal against the refusal of the National Court, constituted by Justice Sakora, to grant leave to the appellant, the Helifix Group of Companies Ltd, to seek judicial review of a decision of the first respondent, the PNG Land Board.

2. The Land Board decided on 19 February 2010 to withdraw from the list of matters which had been gazetted for its consideration at a meeting on that day, an application by the appellant for a State Lease over portion 1597, a 13.7-hectare block at Paga Hill, Port Moresby. The appellant had made the application for a State Lease on 4 November 2009 following the decision of the second respondent, the Minister for Lands & Physical Planning, on 14 September 2009 to exempt the land from advertisement for the reason that the appellant had applied for it for purposes of an urban development lease. The Land Board's decision was made without notice to the appellant, on advice from the third respondent, the Secretary for Lands and Physical Planning, and the Registrar of Titles, who cautioned that portion 1597 was surrounded by controversy as a State Lease over it had previously been granted to another company, that it was unclear whether that lease had been revoked and that an urban development lease could not be exempted from advertisement. There followed an exchange of correspondence over several months between the appellant's lawyers and the Secretary and the Deputy Secretary of the Department of Lands and Physical Planning. There was, however, no change in the Department's position and the appellant's application was not re-listed for consideration by the Land Board, so on 17 August 2010 the appellant commenced judicial review proceedings in the National Court.

3. The appellant argued in its statement under Order 16, Rule 3(2)(a) of the National Court Rules that the Land Board erred in law by refusing to consider its application for an urban development lease as the previous title holder's rights over the land had been forfeited, the land had been exempted from advertisement, the appellant had satisfied all legal requirements for its application to be considered and there was no legal impediment to the Board's consideration of its application. It was further argued that the Board breached its duties to inform the appellant of its proposed decision and the reasons for it and to accord to the appellant a reasonable opportunity to be heard, thereby denying natural justice to the appellant and being unreasonable and giving rise to a reasonable apprehension of bias.

4. The appellant's application for leave for judicial review was heard on 7 October 2010 and on 12 October 2010 the primary Judge delivered an oral ruling, refusing to grant leave for two reasons: (a) the appellant, being a mere applicant, lacked standing and (b) the appellant did not have an arguable case as the Land Board had not exercised any statutory powers and therefore its decision to withdraw the application from its consideration was not capable of being judicially reviewed. The appellant has appealed to the Supreme Court, arguing that the primary Judge erred in law in refusing leave on each of those two grounds.

GROUND (a): ERROR OF LAW BY FINDING THAT THE APPELLANT LACKED STANDING

5. It is one of the prerequisites to the granting of leave, prescribed by Order 16, Rule 3(5) of the National Court Rules, that the Court "considers that the applicant has a sufficient interest in the matter to which the application for leave relates"; alternatively described as the locus standi or standing requirement. Other prerequisites are that the decision sought to be reviewed must be that of a public body, the applicant has an arguable case, the applicant has exhausted the available administrative remedies before seeking judicial intervention and there has been no undue delay in making the application (Kas v The State (2000) N2010, Darius v Commissioner of Police (2001) N2046, Medaing v Muling (2010) N4001).

6. The appellant argues that the primary judge erred by holding that it lacked standing and by regarding it as a 'mere applicant' for a State Lease. Mr Haiara, for the appellant, submitted that his Honour failed to appreciate that it was the only applicant, as the Minister had exempted the land from advertisement in its favour, and that it had a proprietary interest in the land and was entitled to have its application dealt with by the Land Board. Further, that his Honour failed to differentiate between the two circumstances in which an application for a State Lease are considered by the Land Board: ordinary circumstances, in which there are a number of applicants, and the circumstances of the present case, where the appellant was the sole applicant. The appellant is not a mere busybody, meddling in the affairs of other people, Mr Haiara submitted.

7. We are unpersuaded by those submissions. We do not consider that his Honour erred in labelling the appellant as a ''mere applicant'. His Honour did not say that the appellant was a 'mere busybody', the term used in the classic dictum of Lord Diplock in R v Inland Revenue Commissioners; Ex parte National Federation of Self Employed and Small Business Ltd [1981] UKHL 2; [1982] AC 617. By using the term 'mere applicant' his Honour was simply emphasising that the appellant had no right or legitimate expectation regarding the consideration of its application by the Board on the date that the Board decided to withdraw the appellant's application from consideration. It is incorrect to say that the appellant had a proprietary interest in the land. It had no proprietary interest in the land; it was only an applicant for a proprietary interest. His Honour fully appreciated that by virtue of the terms of the notice of exemption from advertisement signed by the Minister, the appellant was the sole applicant. We agree with his Honour that the fact that it was the sole applicant gave the appellant no greater interest in the subject matter of the decision than if it had been one of a number of applicants. We also agree with the sharp, and apposite, distinction drawn by his Honour between on the one hand, a situation in which a person, who is, for example, the holder of a State Lease, has their lease forfeited by an administrative decision, and on the other hand, the circumstances of the present case, where the appellant had no interest at all in the land and was seeking to obtain from the Board a recommendation in its favour, which would go to the Minister for further deliberation and determination in its favour before it could obtain an interest in the land. In the former scenario it would be easy for the aggrieved lessee to demonstrate a sufficient interest in the matter to which the decision relates. In the latter scenario, we agree with the learned primary Judge that the appellant, having no proprietary interest in the land and being a mere applicant for an interest, lacks standing to challenge a decision to withdraw its application from consideration on a particular day. Ground (a) of the appeal is dismissed.

GROUND (b): ERROR OF LAW BY FINDING THAT THE LAND BOARD'S DECISION WAS NOT CAPABLE OF BEING REVIEWED

8. The appellant argues that his Honour erred by misapplying the prerequisite for leave relating to the decision-maker being a public body. Mr Haiara submits that the Land Board is clearly a public body, as it is established by the Land Act, and that its decision of 17 February 2010 to withdraw the appellant's application from consideration was made pursuant to its statutory powers and was therefore capable of being subject to judicial review.

9. We consider that those submissions have misconstrued his Honour's reasoning. His Honour did not rule that the public body prerequisite was not satisfied. There was no ruling that the Land Board is not a public body. Clearly it is. What his Honour focused on was that the decision of the Board to withdraw the appellant's application for consideration was not made pursuant to any particular statutory provision. His Honour concluded, properly in our view, that the appellant had no arguable case as the decision was a simple matter of administration concerning the management of the business of the Board. Such a matter falls into the area of managerial or administrative discretion. It is not the sort of decision that is susceptible to judicial review (Mondiai v Wawoi Guavi Timber Company Ltd (2006) N3061). Furthermore, it is not correct to describe the Board's decision as a refusal to consider the appellant's application. It was simply a decision to withdraw it from consideration on a particular day. We consider that his Honour made no error of law in concluding that the Board's decision of 17 February 2010 was not capable of being judicially reviewed. Ground (b) is dismissed.

OTHER MATTERS

10. There is another ground on which leave for judicial review could have been refused, which was drawn to our attention by Mr Mapiso, for the respondents. It relates to the prerequisite that the applicant exhaust all available administrative remedies. Section 62 of the Land Act, which provides that a person aggrieved by a decision of the Land Board may forward a notice of appeal to the Minister, was not invoked by the appellant. This means that the appellant failed to exhaust its right to seek administrative redress before seeking the intervention of the Court. We uphold Mr Mapiso's submission that that alone is sufficient to warrant the refusal of leave for judicial review.

11. Finally, although the decision of the Minister to exempt portion 1597 from advertisement was not called into question by this appeal, we have examined the notice of exemption as it appears in the affidavits that accompanied the appellant's leave application in the National Court. We note that it does not appear to comply with the requirements of Section 69 of the Land Act (see West New Britain Provincial Government v Kimas (2009) N3834 and Mosoro v Kingswell Ltd (2011) N4450). Apart from that, it seems extraordinary that such a large block of prime land, 13.7 hectares, in the nation's capital, close to the central business district, would be exempted from advertisement in view of the current shortage of land for development purposes and widespread suspicion as to corrupt land deals. One way of alleviating such suspicion would be to revoke the exemption from advertisement and to offer the land for lease by open or public tender in accordance with Division X.10 (urban development leases) of the Land Act. We strongly recommend that such an approach be taken in this case.

12. We have dismissed both grounds of appeal. The appeal will therefore be dismissed. Costs will follow the event.

ORDER

For the reasons outlined above, we order that:

(1) The appeal is entirely dismissed.

(2) The appellant shall pay the respondents' costs of the proceedings, on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.
_____________________

Steeles Lawyers: Lawyers for the Appellant
Solicitor – General: Lawyers for the Respondents