Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016)

SC1525

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM No. 10 OF 2010

BETWEEN

AARON DUPNAI FOR AND ON BEHALF OF SRUMNAI CLAN,
KIUNGA, WESTERN PROVINCE
First Appellant

AND
ARO TUNAI
Second Appellant

AND
BRIAN WEKE & MEMBERS OF MEPU CLAN,
KIUNGA, WESTERN PROVINCE
First Respondent

AND
WILFRED WAN & MEMBERS OF HOGAS (GASE) CLAN,
KIUNGA, WESTERN PROVINCE
Second Respondent

AND
HARO GENKU & MEMBERS OF MIA CLAN,
KIUNGA, WESTERN PROVINCE
Third Respondent

AND
PATRICK MONOULUK, LOCAL LAND COURT MAGISTRATE
Fourth Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Cannings J., Kassman & MurrayJJ.
2016: 30^th June, 19^th August

JUDICIAL REVIEW – leave requirements – whether applicant has sufficient interest in the matter to which application for review relates – whether undue delay in making application for leave – whether administrative remedies have been exhausted.

The first appellant is the leader of a clan that claimed customary ownership of land on which a town has been built. He, joined by the second appellant, appealed against the decision of the National Court to refuse to grant leave to apply for judicial review of decisions regarding that land, by the Local Land Court and the Provincial Land Court. Those decisions declared and confirmed that the customary landowners were two other clans, the first and second respondents. The National Court gave three reasons for refusing leave: (a) lack of standing, as the first appellant was not a party to the Local Land Court or Provincial Land Court proceedings; (b) undue delay, without reasonable explanation, in applying for leave; (c) failure to exhaust administrative avenues for resolving the grievances. There were five grounds of appeal. It was argued that the primary Judge erred in law, by: (1) miscalculating and not properly considering the apparent delay in making the application for leave; (2) failing to warn himself that the appellants’ claim to customary ownership of the land would forever be without a fair trial; (3) failing to consider that there was an arguable case for judicial review; (4) finding that the first appellant had no interest in the matter and lacked locus standi; (5) finding that the first appellant had not exhausted administrative remedies.

Held:

(1) The periods between the dates of decisions of the Local Land Court (3 November 2006) and Provincial Land Court (11 August 2008) and the date of making the application for leave (6 July 2010) amounted to long delays, of three years, seven months, and one year, 11 months respectively; and there was no reasonable explanation for such long delays. The primary Judge did not err in refusing leave for undue delay. Ground 1 of the appeal was dismissed.

(2) A Judge hearing a leave application is not required to issue a self-warning as to the prospect of the applicant not being able to have the merits of their substantive grievance determined. Ground 2 was dismissed.

(3) If leave is refused for other reasons, a Judge hearing a leave application is not required to assess whether the applicant has an arguable case for judicial review. Ground 3 was dismissed.

(4) An applicant for leave for judicial review of Land Court proceedings to which he was not a party can be regarded as having a sufficient interest in the matter, if he can show that (a) he was in fact genuinely aggrieved and (b) he might properly have been a party to the Local Land Court and the Provincial Land Court proceedings and (c) there is a reasonable explanation for his not being a party to those proceedings. The primary Judge erred by taking an overly-simplistic approach to the locus standi issue, but the error was not significant as a more elaborate approach would have resulted in the same conclusion: that the first appellant did not have a sufficient interest. Subject to that qualification, ground 4 was upheld.

(5) One of the prerequisites to leave being granted for judicial review is that the applicant exhausts statutory and administrative remedies for resolution of their grievance. The primary Judge properly ruled that the first appellant had not exhausted all available statutory or administrative remedies. Ground 5 was dismissed.

(6) As four of the five grounds of appeal were dismissed and the single ground upheld did not involve a significant error of law, the appeal was dismissed. The parties were ordered to bear their own costs as it was evident that all parties had contributed to the substantial delay in having the appeal heard.

Cases cited:

The following cases are cited in the judgment:

Felix Alai v Nakot Waina (2012) N4773
Jeffrey Turia v Gabriel Nelson (2008) SC949
Ken Norae Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886
Kitogara Holdings v NCDIC [1988–89] PNGLR 346
Leto Darius v Commissioner of Police (2001) N2046
Louis Medaing v Minister for Lands and Physical Planning (2010) N3917
NTN Pty Ltd v PTC [1987] PNGLR 70
Tamali Angoya v Tugupa Association Inc (2009) SC978

APPEAL

This was an appeal against a decision of the National Court refusing an application for leave to seek judicial review of decisions of a Local Land Court and a Provincial Land Court.

Counsel:

L Putupen, for the First Appellant
A Donigi, for the Second Appellant
J Siki, for the Second Respondent
I Mugugia, for the Fourth & Fifth Respondents

19^th August, 2016

1. BY THE COURT: Aaron Dupnai, the first appellant, appeals against the decision of the National Court to refuse his application for leave to seek judicial review of decisions of a Local Land Court and a Provincial Land Court concerning land at Kiunga, Western Province.
   
2. Mr Dupnai, who represents Srumnai Clan, is supported in the appeal by the second appellant, Aro Tunai. Mr Tunai was originally granted leave to join the appeal as sixth respondent, but at the hearing of the appeal he was redesignated as second appellant.
   
3. The first, second and third respondents were parties to the Local Land Court and Provincial Land Court proceedings. Only the second respondent, Wilfred Wan, representing Hogas (Gase) Clan, appeared at the appeal hearing. He opposes the appeal. Also opposing the appeal are the fourth respondent, his Worship Mr Patrick Monouluk, who constituted the Local Land Court, and the fifth respondent, the State.
   

BACKGROUND

4. On 3 November 2006 the Kiunga Local Land Court gave its decision on customary ownership of the land on which Kiunga town is located. It was declared that the joint customary landowners were the clans represented by the first and second respondents and that the clan represented by the third respondent had no customary ownership of the land. Neither the first appellant nor his clan, nor the second appellant, were parties to the Local Land Court proceedings.
   
5. The third respondent appealed to the Provincial Land Court against the Local Land Court decision. The appeal was dismissed on 11 August 2008. Neither of the appellants was a party to the Provincial Land Court proceedings, and neither of them filed their own appeal against the Local Land Court decision.
   
6. On 7 April 2009 the first appellant filed, in the National Court
   (OS (JR) No 177 of 2009), an application for leave to seek judicial review of the 3 November 2006 decision of the Local Land Court. The application remained unheard for 14 months. On 24 June 2010 the first appellant filed an amended application for leave to seek judicial review. By the amended application, the first appellant sought leave to review, in addition to the decision of the Local Land Court, the 11 August 2008 decision of the Provincial Land Court. The second appellant was not a party to the National Court proceedings. The proposed grounds of review of the first appellant included allegations that both the Local Land Court and the Provincial Land Court exceeded their jurisdiction and denied him natural justice by refusing to hear his clan’s claim to customary ownership of the land.
   
7. On 6 July 2010 the National Court, constituted by Justice Gavara-Nanu, heard the application for leave. On 7 July 2010 his Honour delivered an oral judgment, refusing leave, for three reasons:
   

(a) lack of standing, as the first appellant was not a party to the Local Land Court or Provincial Land Court proceedings;

(b) undue delay, without reasonable explanation, in applying for leave;

(c) first appellant’s failure to exhaust administrative avenues for resolving his grievances.

8. On 13 August 2010 the first appellant filed his appeal against the refusal of leave for judicial review. That is the matter we are now determining. The appeal is based on five grounds. It is argued that the primary Judge erred in law, by:
   

(1) miscalculating and not properly considering the apparent delay in making the application for leave;

(2) failing to warn himself that the first appellants’ claim to customary ownership of the land would forever be without a fair trial;

(3) failing to consider that there was an arguable case for judicial review;

(4) finding that the first appellant had no interest in the matter and lacked locus standi;

(5) finding that the first appellant had not exhausted administrative remedies.

9. The first appellant, supported by the second appellant, seeks an order quashing the decision of the National Court and ordering the Local Land Court to rehear the dispute that was the subject of its decision of 3 November 2006.
   
10. The appeal was heard on 30 June 2016, almost six years after it was filed. None of the parties has raised an issue about this lengthy delay. We infer that all parties bear responsibility for it. We now address the grounds of appeal.
    
1. MISCALCULATING AND FAILING TO PROPERLY CONSIDER APPARENT DELAY IN MAKING APPLICATION FOR LEAVE
   
11. The primary Judge dealt with the issue of delay in the following way:
    

I ... find that the plaintiffs have not provided any reasonable explanations why this application is not made until three years, six months after the decision was given by Kiunga Local Land Court and one year, 11 months after the Provincial Land Court dismissed the appeal ... Mr Putupen [counsel for the first appellant] told the court that ... if the plaintiffs are granted leave, they can later adduce evidence to explain why there has been such a delay in making this application. However, there is no basis, no legal basis for such an argument because the delay issue must be addressed at the leave stage as it is an issue which arises when leave is sought under Order 16 of the National Court Rules.

12. The appellants argue that the primary Judge miscalculated the length of the delay between the dates of the decisions of the Local Land Court (3 November 2006) and the Provincial Land Court (11 August 2008) and the making of the application for leave to seek judicial review (6 July 2010), and that his Honour’s approach to the issue of delay was flawed. It is argued that his Honour did not take into account that the application for leave was filed on 7 April 2009, which was only eight months after the date of the Provincial Land Court’s decision (11 August 2008); and did not apply the criteria in Order 16, Rule 4 (delay in applying for relief) of the National Court Rules in determining whether leave should be granted.
    
13. His Honour calculated the periods of delay by highlighting the periods between:
    

• the dates of the decisions proposed to be reviewed (3 November 2006 and 11 August 2008); and
  
• the date on which the application for leave was made (6 July 2010).
  

14. We agree with his Honour that the relevant ‘end date’ for calculating the period of delay is the date on which the application for leave was made (6 July 2010), not the date on which it was filed (7 April 2009). Our only disagreement with his Honour’s calculations is that he underestimated the delay between the date of the Local Land Court decision (3 November 2006) and the date on which the application for leave was made (6 July 2010). His Honour said it was three years, six months. In fact, it was three years, seven months. We agree with his Honour’s calculation of the delay between the date of the Provincial Land Court decision (11 August 2008) and the date on which the application for leave was made (6 July 2010). It was approximately one year, 11 months.
    
15. We agree with his Honour that these were substantial delays and that it was incumbent on the appellant to offer a reasonable explanation for them. We also agree that there was no explanation made available to his Honour. Proof that there has been no unreasonable delay in making the application for leave is one of the prerequisites that an applicant for leave to seek judicial review must satisfy. It was not satisfied in this case, so it followed naturally that leave would be refused.
    
16. We now address the appellants’ argument based on Order 16, Rule 4, 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.

17. It will be observed that Rule 4(1) refers to two scenarios in which there has been delay:
    
    • (a) delay in making the application for leave to seek review: a delay will exist in cases in which the applicant is applying for an order of certiorari, where the application is made more than four months after the date of the “proceeding” sought to be reviewed;
      
    • (b) where the Court considers that there has been undue delay in making the application for judicial review.
      
18. Rule 4(1) provides that if either scenario exists, the Court may:
    
    • refuse to grant leave to seek review; or
      
    • refuse 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 any person; or
  
• likely to substantially prejudice the rights of any person; or
  
• detrimental to good administration.
  

19. The appellants argue that the primary Judge was faced with scenario (a), as the application for leave was made (on 6 July 2010) more than four months after the dates of the ‘proceedings’ sought to be reviewed (the Local Land Court decision of 3 November 2006 and the Provincial Land Court decision of 11 August 2008). They argue that his Honour could only refuse to grant leave on the ground of undue delay if he was of the opinion that the granting of 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. His Honour did not form an opinion on any of those matters. Therefore, it is argued, his Honour erred in law.
    
20. We reject that argument. It is not mandatory for a Judge hearing a leave application to expressly refer to the opinion, if any, formed as to the matters set out in Order 16, Rule 4(1). Those matters are guidelines, which the Judge may take into account in the exercise of discretion as to whether to grant leave for review. Provided that the Judge addresses his or her mind to the question of whether there has been undue delay in making the application for leave and, if there has been undue delay, whether there is a reasonable explanation for it, that will be a sufficient consideration of the issue of delay. The primary Judge adequately addressed these issues. We therefore dismiss ground 1 of the appeal.
    
2. PRIMARY JUDGE’S FAILURE TO WARN THAT FIRST APPELLANT’SCLAIM TO CUSTOMARY OWNERSHIP OF LAND WOULD FOREVER BE WITHOUT A FAIR TRIAL
   
21. It is argued that his Honour erred in law by not taking into account that refusal of leave would leave the first appellant and his clan without an opportunity to claim customary ownership of the land on which Kiunga town has been established.
    
22. This argument is entirely without merit. A Judge hearing a leave application in relation to decisions of a Local Land Court or a Provincial Land Court is not required to issue a self-warning as to the prospect, in the event that leave is refused, of the applicant not being able to have the merits of their substantive grievance determined. Such a leave application is to be determined in the same way as is any other application for leave to seek judicial review. Ground 2 is dismissed.
    
3. FAILING TO CONSIDER THAT THERE WAS AN ARGUABLE CASE FOR JUDICIAL REVIEW
   
23. The appellants argue that a Judge hearing an application for leave to seek judicial review must determine whether the applicant has an arguable case and that if that is not done, that will vitiate the decision on whether leave is granted. They argue that the primary Judge did not consider whether there was an arguable case and that if his Honour had considered the case put by the first appellant, he would have concluded that it was a strongly arguable case and reached a different conclusion on whether leave should be granted.
    
24. We uphold some of the propositions advanced by the appellants. First, it is correct that the question of whether an applicant for leave has raised an arguable case is a criterion that must be satisfied before leave is granted. The question of whether leave to apply for judicial review should be granted is a matter of discretion and turns on whether five requirements are met:
    

(a) Does the plaintiff have locus standi, ie a sufficient interest in the subject matter of the decision?

(b) Is the decision sought to be reviewed that of a public authority?

(c) Does the plaintiff have an arguable case on the merits?

(d) Have administrative remedies, if any, been exhausted?

(e) Has the application been made promptly without undue delay?

25. If all five are satisfied, leave will normally be granted. If one or more is not satisfied, leave should be refused (NTN Pty Ltd v PTC [1987] PNGLR 70, Leto Darius v Commissioner of Police (2001) N2046, Louis Medaing v Minister for Lands and Physical Planning (2010) N3917, Felix Alai v Nakot Waina (2012) N4773).
    
26. The second proposition we uphold is that, in fact, the primary Judge did not address the question of whether the first appellant raised an arguable case for review.
    
27. However, we disagree with the proposition that because his Honour did not consider the arguable case issue, he erred. There was a good reason his Honour did not consider that issue. He found that three other criteria were not satisfied: locus standi, exhaustion of administrative remedies and absence of undue delay. If leave is refused for other reasons, a Judge hearing a leave application is not required to assess whether the applicant has an arguable case for judicial review. Ground 3 is dismissed.
    
4. FINDING THAT THE FIRST APPELLANT HAD NO INTEREST IN THE MATTER AND LACKED LOCUS STANDI
   
28. The primary Judge dealt with the issue of locus standi in the following way:
    

... it is confirmed that the plaintiffs in these proceedings were not a party to the proceedings that were before the Kiunga Local Land Court ... That being the case, the plaintiffs have no standing to bring this application as they could not be said to be ... aggrieved by the decision given by the Kiunga Local Land Court on 3 November 2006.

29. The appellants argue that the primary Judge erred by ruling that because the first appellant was not a party to the Local Land Court proceedings, he could not be said to be aggrieved by the decision of that Court and therefore he lacked standing. They argue that the evidence before the National Court showed that the first appellant was genuinely aggrieved by the decision of the Local Land Court and also by the decision of the Provincial Land Court and that his clan had long claimed customary ownership of the Kiunga town land. They argue that, just as a person who is aggrieved by a decision of the National Court can appeal to the Supreme Court even though they were not a party to the National Court proceedings, so it is in the case of a person who was not a party to Land Court proceedings, who is genuinely aggrieved by the Land Court decision: such a person can be granted leave to apply for judicial review.
    
30. We find some merit in those submissions. We agree that it is useful to draw an analogy with appeals from the National Court to the Supreme Court. The leading case of Kitogara Holdings v NCDIC [1988–89] PNGLR 346 stands as authority for the proposition that a person does not have to have been a party to National Court proceedings to be able to appeal against a judgment of the National Court. Any person whose interests are affected by or who is genuinely aggrieved by the order of the National Court and who might have been joined as a party to the National Court proceedings has a right of appeal. That principle has been applied in many subsequent cases, including Ken Norae Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886, Jeffrey Turia v Gabriel Nelson (2008) SC949 and Tamali Angoya v Tugupa Association Inc (2009) SC978.
    
31. With respect, we consider that the learned primary Judge fell into error by finding that, simply because the first appellant was not a party to the Local Land Court proceedings, he lacked standing. A somewhat more elaborate approach was required.
    
32. His Honour, with respect, should have been guided by Order 16, Rule 3(5) of the National Court Rules, which states:
    

The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

33. It was necessary to have regard to the Kitogara Holdings principle and apply it to the circumstances of this case. For example, the issue of locus standi could have been addressed by posing the following question: could the first appellant be said to have a “sufficient interest” in the matter to which the application relates (the decisions of the Local Land Court and the Provincial Land Court) given that he was not a party to the proceedings of either Court?
    
34. If that sort of question were posed, we consider that the answer would be in the negative unless the applicant could show that:
    

(a) he was in fact genuinely aggrieved, and

(b) he might properly have been a party to the Local Land Court and the Provincial Land Court proceedings, and

(c) there is a reasonable explanation for his not being a party to those proceedings.

35. We consider that (a) and (b) are satisfied, but not (c). The first appellant claimed in the National Court and also before the Supreme Court that he was not permitted by the Local Land Court or the Provincial Land Court to be a party to their proceedings – that his application to join those proceedings was rejected by both courts. However, he brought scanty evidence to support that allegation. He therefore provided no reasonable explanation for his not being a party to either proceeding.
    
36. We consider that if the question of locus standi had been addressed in that way, rather than in the way the learned primary Judge addressed it, the conclusion would still have been reached that the first appellant did not have a sufficient interest in the matter.
    
37. We conclude that the learned primary Judge erred by taking an overly simplistic approach to the locus standi issue, but that the error was not significant. Subject to that qualification, ground 4 of the appeal is upheld.
    
5. FINDING THAT THE FIRST APPELLANT HAD NOT EXHAUSTED ADMINISTRATIVE REMEDIES
   
38. The primary Judge dealt with the issue of whether the first appellant had exhausted administrative remedies in the following way:
    

I also accept Mr Mapiso’s submission that the applicants should have taken this complaint and had it dealt with under the Land Disputes Settlement Act first because this is in essence a first complaint and the applicants are also a new party. In that sense the plaintiffs have not exhausted the other administrative remedies to resolve their dispute.

39. The appellants argue that the primary Judge erred by ruling that they had not exhausted the remedies available to them under the Land Disputes Settlement Act.
    
40. We disagree. The appellants did not clearly demonstrate, either in the National Court or the Supreme Court, why they were not a party to the Local Land Court or the Provincial Land Court proceedings. They maintain that they were not permitted to join those proceedings, but do not support that contention with sufficient evidence.
    
41. One of the prerequisites to leave being granted for judicial review is that the applicant exhausts all statutory and administrative remedies for resolution of their grievance. The primary Judge properly ruled that the appellant had not exhausted all available statutory and administrative remedies. Ground 5 is dismissed.
    

CONCLUSION

42. As four of the five grounds of appeal have been dismissed and the single ground (No 4) that has been upheld did not involve a significant error of law, the appeal will be dismissed. Because of the long delay in having the appeal heard, which it seems most of the parties have contributed to, the parties will bear their own costs.
    

ORDER

(1) The appeal is dismissed.

(2) The order of the National Court of 7 July 2010 in OS (JR) No 177 of 2009 is affirmed.

(3) The parties will bear their own costs.

Judgment accordingly.

__________________________________________________________________

Putupen & Associates Lawyers : Lawyers for the 1^st Appellant
Public Solicitor : Lawyer for the 2^nd Appellant
Greg Manda Lawyers : Lawyers for the 2^nd Respondent
Solicitor-General : Lawyer for the 4^th& 5^th Respondents