Wek v Sobol Trading Ltd [2016] PGSC 53; SC1535 (14 September 2016)

SC1535

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM No. 25 OF 2015

BETWEEN
JOHN WANIS WEK
Appellant

AND
SOBOL TRADING LIMITED
First Respondent

AND
ROMILLY KILA PAT, SECRETARY,
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Respondent

AND
HON BENNY ALLAN, MINISTER FOR LANDS & PHYSICAL PLANNING
Third Respondent

AND
REGISTRAR OF TITLES
Fourth Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Kirriwom J, Cannings & Neill JJ.
2016:1^st & 14^th September

JUDICIAL REVIEW – leave requirements – whether applicant had a sufficient interest in the subject of the application for leave – whether applicant raised an arguable case for judicial review.

The appellant and the first respondent were unsuccessful applicants for an Urban Development Lease, which had been advertised for tender. Both forwarded a notice of appeal to the Minister against the decision of the Land Board to recommend that the lease be granted to another person. The first respondent’s appeal was upheld, while the appellant’s appeal was dismissed, the result being decisions of the Secretary for Lands & Physical Planning and the Minister for Lands & Physical Planning to facilitate granting of the lease to the first respondent. The appellant applied to the National Court for leave to seek judicial review of the decisions of the Land Board, the Secretary and the Minister to facilitate granting the lease to the first respondent. The National Court refused leave for two reasons: (a) the appellant did not have a sufficient interest in the subject matter of the decisions he sought leave to review, as he was a mere applicant for the lease and such actual interest that he did have was rendered nugatory by his conduct: he did not come to the court with clean hands as he had illegally entered the land that was the subject of the proceedings and built a permanent dwelling on it and was therefore a trespasser; (b) failure to show an arguable case that the Land Board, the Secretary or the Minister had exceeded their power or made any error of law in their decision-making. The appellant appealed against the refusal of leave on two material grounds. It was argued that the primary Judge erred in law, by: (1) finding that the appellant did not have a sufficient interest in the subject of the decisions he wanted reviewed; and (2) finding that there was no arguable case for judicial review.

Held:

(1) The appellant had a sufficient interest in the matter arising from his being an applicant for the lease, an appellant against the decision of the Land Board and the steps he had taken through normal administrative procedures to show his interest in the land. The primary judge unfairly labelled him as a trespasser. Ground (1) of the appeal was upheld.

(2) The primary judge did not appreciate the primary ground of judicial review that the appellant sought to argue, viz that the decisions to facilitate granting the lease to the first respondent were affected by error of law due to the fact that when it made its application to the Land Board for the lease, the first respondent was a non-existent legal entity, as it was not incorporated until eight months after the closing date for applications. The primary Judge failed to adequately consider whether there was an arguable case. Ground (2) of the appeal was upheld.

(3) As both grounds of appeal were upheld, the appeal was allowed and the decision of the National Court was quashed. The Supreme Court substituted, for the decision of the National Court, its decision, granting leave to the appellant to review the decisions of the Land Board, the Secretary and the Minister to facilitate granting the lease to the first respondent. Costs of the appeal were awarded to the appellant.

Cases cited:

The following cases are cited in the judgment:

Kapiura Trading Ltd v Bullen (2012) N4903
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

APPEAL

This was an appeal against a decision of the National Court, refusing an application by the appellant for leave to seek judicial review of decisions relating to the granting of an Urban Development Lease to the first respondent.

Counsel:

J J Lome,for the Appellant
I Mugugia & E Manihambu, for the Second, Third, Fourth & Fifth Respondents

14^th September, 2016

1. BY THE COURT: John Wanis Wek, the appellant, appeals against the decision of the National Court to refuse his application for leave to seek judicial review of administrative decisions made under the Land Act regarding an Urban Development Lease over land in the National Capital District.
   

BACKGROUND

2. The land, formally described as Portion 2888, Milinch Granville, Four mile Moresby, is at Tokarara. An Urban Development Lease over the land was, in 2012, advertised for tender and the appellant, amongst others, made an application for the lease, to the Land Board.
   
3. The Land Board, in 2014, rejected the appellant’s application, amongst a number of others. It recommended that the lease be granted to a company called Blue Energy (PNG) Ltd (which is not a party to this appeal). The appellant and another unsuccessful applicant, Sobol Trading Ltd (the first respondent), being aggrieved, appealed against the decision, under Section 62 of the Land Act, by forwarding notices of appeal to the Minister for Lands and Physical Planning (the second respondent). Such appeals are determined by the Head of State, ie the Governor-General, acting on the advice of the National Executive Council.
   
4. On 19 May 2015, the Secretary of the Department of Lands and Physical Planning (the second respondent), acting as a delegate of the Minister, published a notice in the National Gazette No G330 of 2015, notifying that the appeals against the Land Board’s recommendation in favour of Blue Energy (PNG) Ltd had been determined: Sobol Trading Ltd’s appeal was upheld and the appellant’s appeal was dismissed.
   
5. On 29 May 2015 the appellant filed in the National Court, by originating summons, an application for leave to seek judicial review of the decisions of the Land Board, the Secretary and the Minister to facilitate granting the lease to the first respondent. The primary proposed ground of review, set out in the appellant’s supporting statement under Order 16, Rule 3(2)(a) of the National Court Rules, was that all decisions to facilitate granting the lease to the first respondent were affected by error of law due to the fact that, when it made its application for the lease to the Land Board, the first respondent was a non-existent legal entity. It was not incorporated until eight months after the closing date for applications.
   
6. On 21 July 2015 the National Court, constituted by Justice Gavara-Nanu, heard the application for leave. On 22 July 2015 his Honour delivered an oral judgment, refusing leave, for two reasons:
   

(a) the appellant did not have a sufficient interest in the subject matter of the decisions he sought leave to review,

(b) failure to show an arguable case that the Land Board, the Secretary or the Minister had exceeded their power or made any error of law in their decision-making.

THIS APPEAL

7. The appellant filed an appeal against the refusal of leave for judicial review. That is the matter we are now determining. There are two material grounds of appeal. It is argued that the primary Judge erred in law, by:
   

(1) finding that the appellant did not have a sufficient interest in the subject of the decisions he wanted reviewed; and

(2) finding that there was no arguable case for judicial review.

8. The appellant seeks an order quashing the decision of the National Court and granting him leave to apply for judicial review.
   
   9. We now address the two grounds of appeal.
      
      1. ERROR OF LAW BY FINDING THAT THE APPELLANT DID NOT HAVE A SUFFICIENT INTEREST
         
10. One of the prerequisites for a person being granted leave for judicial review is that he has a sufficient interest in the subject matter of the decision he wants reviewed. This requirement arises under 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.

11. In this case, the primary Judge dealt with the question of whether the appellant had a sufficient interest in this way:
    

The applicant [the appellant] has argued that [he] has a special interest in the land because [he] had already done development on the property. There is clear evidence that the applicant has already put up a permanent house without having the title to the property. The applicant appears to have done this because he has been given planning permission by the National Capital District Planning Board. ...

Any approvals by the National Capital District Planning Board to any interested persons over any portions of land, State land, does not confer a title over those portions of land to that particular person ... Furthermore planning permissions do not mean that the person is given the permission to or the freedom to clear the portion of land and work on it and develop it; which is the case here. To do so without having the title would be conducting illegal activities on the land and the person is trespassing on State land. ...

It is clear to me that the applicant in this case has been conducting illegal developments on the land. This is a matter which is of great concern to the court because it has become a norm where people going on to vacant State land or even traditional land are venturing into putting up developments or improvements before having a clear and valid title. This must be stopped. People who are doing that should be stopped because they are breaking the law.

In this case therefore the applicant does not come with clean hands to make this application. ... the applicant has illegally entered the land and developed it without having title.

12. His Honour thus decided that, although the appellant had an actual interest in the land, he was a mere applicant for the lease. He did not have title. His actual interest was rendered nugatory by his conduct. He did not come to the court with clean hands. He had illegally entered the land. He built a permanent dwelling on it. He was a trespasser. He did not have a valid interest in the land. Therefore he did not have a sufficient interest in administrative decisions concerning the land
    
13. We uphold the submissions of Mr Lome, for the appellant, that in taking such an approach, his Honour took irrelevant considerations into account, and acted unfairly. The appellant did not claim to have title in the land. The question was not whether he had illegally entered it. The question was whether he had a sufficient interest in the decisions that had been made concerning the land. The finding that the appellant was a trespasser was an irrelevant consideration. Furthermore, before making such an adverse and conclusive finding of illegality against the appellant, his Honour should have given the appellant a full opportunity to be heard on that issue. That did not happen; and that is why, with respect, we consider that his Honour decided the issue unfairly.
    
14. We do not disagree with his Honour’s concerns about the spectre of people, who do not have title, entering Government land, improving it and building dwellings on it. Such persons, we agree, do so at great risk. The appellant has indeed taken a great risk in entering the land and spending a considerable amount of money by building a dwelling on it, while knowing all along that he did not have title and that he did not have a right to be granted title.
    
15. The appellant’s conduct will be a relevant consideration in deciding whether he is granted a remedy at the trial of the judicial review, when he can be given a right to be heard on that issue.
    
16. However, we consider that, for purposes of the leave application, there was ample evidence that the appellant had engaged in a course of conduct that demonstrated his actual interest in the subject matter of the decisions he wanted to have judicially reviewed. In particular:
    
    • (a) he had taken steps (including having the land surveyed and seeking preliminary planning permission) over a number of years through normal administrative channels to demonstrate his interest in this particular portion of land;
      
    • (b) he was an applicant for the Urban Development Lease;
      
    • (c) he was a statutory appellant against the decision of the Land Board.
      
17. The appellant’s actual interest was a sufficient interest. We find, with respect, that the learned primary Judge erred in his approach to the question of whether the appellant had a sufficient interest. Ground (1) of the appeal is upheld.
    

2 FINDING THAT THE APPELLANT HAD NO ARGUABLE CASE

18. The primary proposed ground of review was that all decisions to facilitate granting the lease to the first respondent were affected by error of law due to the fact that, when it made its application for the lease to the Land Board, the first respondent was a non-existent legal entity. It was not incorporated until eight months after the closing date for applications.
    
    19. The primary Judge dealt with this issue in the following way:
        

The plaintiff [the appellant] argued that the current titleholder ... was incorporated after it was issued with the title. That point was stressed by the applicant.

In this regard, I accept the State’s submission that this Court should not be drawn into determining whether the current titleholder holds a valid title over the subject portion of land. That issue does not arise before this court and all that the applicant can say about that title being issued to the first defendant is that the lease was granted to someone else other than the applicant. I said that the issue regarding the first defendant or respondent holding the title to which – which has been challenged by the applicant in this application is a matter which is a separate matter and for – it is irrelevant for purposes of the leave application. In this case the applicant has to demonstrate to the court that the decision of the Minister and the Land Board was improperly or incorrectly made. The is no evidence of that before me.

20. We uphold the submission of Mr Lome that his Honour did not appreciate the primary ground of judicial review that the appellant sought to argue: that the decisions to facilitate granting the lease to the first respondent were affected by error of law due to the fact that when it made its application to the Land Board for the lease, the first respondent was a non-existent legal entity. The appellant was not asking his Honour to determine that the first respondent did not have a proper title. The appellant was simply trying to establish an arguable case.
    
21. The appellant wants to argue that the decisions of the Land Board, the Secretary and the Minister were wrong in law: they all overlooked the fact that, at the critical time of the closing date for making applications to the Land Board, the first respondent did not exist. The appellant wants to argue that the Land Board had no jurisdiction to even consider the first respondent’s application. Therefore the first respondent had no right to appeal against the decision of the Land Board. The Secretary and the Minister therefore had no power to facilitate the granting of the lease to the first respondent.
    
22. Those are not outlandish propositions. That they are arguable is demonstrated by the decision of the National Court in Kapiura Trading Ltd v Bullen (2012) N4903. An application for judicial review of the decision of the Minister for Lands to grant a State Lease to a respondent was granted on a number for grounds, one of them being that, at the date the respondent was granted the lease, it was not a legal entity. It was an unincorporated business. It was not incorporated as a company until after it was granted the lease. The Court held that the Minister’s statutory power to grant State Leases is constrained by the requirement that the grantee is a legal person.
    
23. We consider the learned primary Judge erred in finding that there was no arguable case. With respect, his Honour should have concluded that an arguable case for judicial review had been made out. Ground (2) of the appeal is upheld.
    

CONCLUSION

24. As both grounds of appeal are upheld, the issue arises as to what orders we should now make. In a civil appeal the Court’s discretion is exercised under Section 16 (decision etc on appeal) of the Supreme Court Act, which states:
    

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may—

(a) adjourn the hearing from time to time; or

(b) affirm, reverse or modify the judgment; or

(c) give such judgment as ought to have been given in the first instance; or

(d) remit the case in whole or in part for further hearing; or

(e) order a new trial.

25. Further, under Section 6(2) of the Supreme Court Act, for the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.
    
26. We will exercise the powers in Sections 6(2) and 16(c). We have all the evidence before us to determine the question whether leave for judicial review should be granted. We have considered the five prerequisites for granting leave (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), namely:
    
    • (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?
      
27. By upholding the two grounds of appeal, we are satisfied as to (a) and (c). We consider that the remaining three prerequisites are also satisfied. We will therefore grant leave to the appellant to review the decisions, the subject of his application to the National Court. Costs will follow the event.
    

ORDER

28. • (1) The appeal is allowed.
      
      • (2) The order of the National Court of 22 July 2015 in OS (JR) No 297 of 2015 is quashed.
        
      • (3) The proceedings, OS (JR) No 297 of 2015, are reinstated and, for the purposes of those proceedings, pursuant to Section 16(c) of the Supreme Court Act, the appellant is granted leave for judicial review of decisions of the Land Board and the second and third respondents to facilitate the granting of the lease to the first respondent, the subject of the statement under Order 16, Rule 3(2)(a) of the National Court Rules filed in those proceedings, and, pursuant to Section 16(d) of the Supreme Court Act, the case is remitted to the National Court for further conduct of those proceedings.
        
      • (4) The second, third, fourth and fifth respondents shall pay the appellant’s costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.
        

Judgment accordingly.

______________________________________________________________
Jeffersons Lawyers: Lawyers for the Appellant
Solicitor-General: Lawyer for the 2^nd, 3^rd, 4^th & 5^th Respondents