Sampson v National Executive Council [2019] PGSC 102; SC1880 (26 November 2019)

SC1880

PAPUA NEW GUINEA
[IN THE SUPEREME COURT OF JUSTICE]

SCM NO. 3 OF 2019

BETWEEN
AQUILA SAMPSON
Appellant

AND
NATIONAL EXECUTIVE COUNCIL
First Respondent

AND
ROBERT ALPHONSE KAIYUM
Second Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Kassman, Toliken & Anis, JJ
2019: 1 May & 26 November

SUPREME COURT – Notice of Motion – Order 10 – Supreme Court Rules – appeal against refusal of leave to apply for judicial review – exercise of discretion by the trial Court - sufficient interest – whether trial judge erred in refusing leave based on lack of sufficient interest – whether personal interest should be the sole determining factor when considering sufficient interest – whether public interest or complaint raised as a citizen should also be considered as sufficient to constitute sufficient interest – whether other considerations namely arguable case, delay and exhaustion of administrative remedies should have also been considered – whether want of their considerations amounts to improper exercise of the discretion

Cases cited:

Jim Kas v. Sevua and Ors (2000) N2010
Kenn Norae Mondiai v. Wawoi Guavi Timbers Co. Ltd (2007) SC886
Steamships Trading Limited v. Garamut Enterprises Ltd (2000) N1959
Re Petition of Michael Somare [1981] PNGLR 265

Counsel:

Mr P Tabuchi, for the Appellant
Mr L P Kandi, for the First and Third Respondents
Mr W Thomas, for the second Respondent

26^th November, 2019

1. KASSMAN J: I have had the benefit of reading the draft judgment of Anis J and I agree with the reasoning and the orders that he proposes. I have nothing further to add.

2. TOLIKEN J: I too share the same view as Kassman J in relation to the reasoning and orders proposed by Anis J.

3. ANIS J: In this appeal, the appellant challenges a decision of the Judicial Review Court (leave Court). On 19 December 2018, the leave Court refused leave to the appellant to apply for judicial review. The appellant was aggrieved and filed this appeal by way of a notice of motion, that is, pursuant to Order 10 of the Supreme Court Rules.

GROUND OF APPEAL

4. The ground of appeal is, and I quote:

The Learned Trial Judge erred in law or mixed law and fact when His Honour refused leave for judicial review on the basis that the Appellant lacked sufficient interest because the First Respondent’s decision appointing him as Provincial Administrator had been rescinded before it was gazetted, when His Honour ought to have found instead, that the Appellant had sufficient interest to bring proceedings by way of judicial review because the recession of the decision appointing him as Provincial Administrator was not a recession done in accordance with the law as pleaded in the Appellant’s Order 16 Statement and this was sufficient to ground the Appellant’s locus standi.

BACKGROUND

5. The undisputed facts which had given rise to the judicial review proceeding at the National Court were as follows. On 7 June 2018, the appellant was appointed by the first respondent to be the Provincial Administrator of Western Province (the position). Before his appointment was gazetted, the first respondent, on 2 August 2018 and in a single act, revoked his appointment and appointed the second respondent to the position. The appellant was aggrieved by that decision, and on 17 October 2018, he filed an application for leave to apply for judicial review at the National Court. The proceeding was described as OS (JR) 734 of 2018.

6. The leave Court, upon hearing the application, refused to grant leave to the appellant to apply for judicial review. In its deliberation, the leave Court considered as its only issue, locus standi or sufficient interest (sufficient interest). It held that the appellant did not have sufficient interest. It did not proceed further after its findings on standing. It dismissed the proceeding with costs.

ISSUE

7. In my view, the main issue for determination is this, whether sufficient interest should be assessed limited only to one’s personal interest in the public matter or complaint that is the subject of judicial review, or whether it (i.e., sufficient interest) should be considered broadly to include public policy considerations or public interest, in the exercise of the discretion of the leave Court.

THE LAW

8. Let me begin by stating the source that creates or states the term sufficient interest in judicial review proceedings. It is Order16 Rule 3(5) of the National Court Rules. It states, and I quote:

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

CONSIDERATION

9. The leave Court, when considering the element sufficient interest, had relied on the case of Jim Kas v. Sevua and Ors (2000) N2010. Its quoted paragraph, which was extracted from Justice Sakora’s decision, reads, and I quote:

This enables the Court to be satisfied that the applicant is not a "meddlesome busy body". Thus, through this sub-rule the issue of locus standi is determined at the outset. The requirement of locus standi or standing determines who exactly is legally entitled to bring a particular dispute or claim before the Courts and invoke the powers of the Courts. Thus, once again, only meritorious interests gain access into the Courts. Some commentators use the term real interest to convey the same notion, as opposed to, for instance, an ideological concern in the outcome. Perhaps, yet another way of describing this requirement is as others have where they use the phrase genuine grievance rather than, say, litigation out of spite or malice.

(Underlining is mine)

10. With the greatest respect, I would differ from Justice Sakora’s view where he stated, and I quote, The requirement of locus standi or standing determines who exactly is legally entitled to bring a particular dispute or claim before the Courts and invoke the powers of the Courts. To me, it dives deep into the legal definition or consideration of the term sufficient interest. I would rather consider the term in its plain language or in the context at which it is used or applied in judicial review proceedings (that are filed under Order 16 of the National Court Rules). There are case authorities that support my differing view. For example, I refer to the Supreme Court case of Kenn Norae Mondiai v. Wawoi Guavi Timbers Co. Ltd (2007) SC886. Then Deputy Chief Justice Sir Mari Kapi, Justice Davani and Justice Lay stated at paragraph 79 of their judgment, and I quote:

79. In this country at our current stage of economic development we do not consider that it is appropriate to narrow the opportunities for interest groups to come to the court to point out what they consider is going wrong, that is unlawful conduct, in government departments and statutory authorities, provided what is complained of is the breach of a public duty by a public authority. There are very few individuals in the groups directly affected by legal actions, particularly concerning customary land, who have the resources to be able to come to the higher courts to get illegal conduct stopped and wrongs righted. In the future we do not rule out the possibility that if the allegations of illegality are sufficiently grave and the evidence of an arguable case sufficiently cogent at the leave stage, even a citizen with no other interests than to see the law upheld may have sufficient interest to bring the case.

(Underlining is mine)

11. Justice Sheehan, earlier and in the case of Steamships Trading Limited v. Garamut Enterprises Ltd (2000) N1959, held, and I quote in part:

Sufficient interest is essentially a mixed question of fact and law, a matter of fact 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 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. But the right to invoke the Court’s supervisory jurisdiction is not restricted to protection of personal rights only. It can extend to more public issues. A broad brush analogy may be drawn with the status of citizen witnessing an indictable offence being committed. He has no legal obligation to intervene or to stop that offence but he does have the status to affect a citizens arrest

In determining standing, Court decisions in this country lean strongly towards the granting of status to citizens seeking to complain of what is seen as breaches of laws of the country. In brief the decisions 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 involvement. Very often determination of standing is only possible with an examination of the complaint itself.

(Underlining is mine)

12. And going back further in time, Chief Justice Sir Mari Kapi, who was part of the majority in Re Petition of Michael Somare [1981] PNGLR 265, formulated the rule on standing under Sch. 2.3 as follows, and I quote, an applicant must have sufficient interest in that to which the application relates. The test of sufficient interest is objective. His Honour, in formulating this underlying law, adopted the objective test that was laid down in the case R v. Inland Revenue Commissioners: Ex parte National Federation of Self Employed and Small Businesses Ltd [1980] 2 All E.R. 378. In the case, Lord Denning said at p. 391, and I quote:

So I come back to the question: have these self-employed and small shopkeepers, through their association, a ‘sufficient interest’ to complain of this amnesty? Have they have a genuine grievance? Are they genuinely concerned? Or are they mere busybodies? The matter is to be decided objectively. A ‘busybody’ is one who meddles officiously on other people’s affairs. He convinces himself, subjectively, that there is cause for grievance when there is none. He should be refused. But a man who is genuinely concerned can point, objectively, to something that has gone wrong and should be put right. He should be heard.”

(Underlining mine)

COURT’S REASONING

13. The leave Court’s decision is located at page 229 of the Application Book (AB). The relevant part of the decision is located at paragraphs 15 and 16 at page 232 of the AB. It reads, and I quote in part:

15. In my mind, the process of the appointment of the applicant according to law was not complete. It would have been completed by a notice in the gazette making it clear that he was so appointed. Communication by Ministers or whosoever to the applicant that he was appointed a Provincial Administrator of the Western Province is not a method sanctioned by law, and no weight can be placed on it.
    
16. It seems to me, on the facts and circumstances of this case, that the applicant cannot complain that he was deprived of any right or interest in a situation where his appointment was never concluded legally. The situation may well have been different if the rescission of his appointment was done following notice in the Gazette having been published.
    

14. The appellant herein, however, argues that the leave Court erred when it did not consider beyond his personal interest and consider fully his submission and contentions which were pleaded in his Order 16 Rule 3(2)(a) Statement (Statement). He argues that in addition to his interest as an applicant to the position, that he also had sufficient interest as a citizen to question whether due process had been followed in relation to the revocation of his appointment and in relation to the appointment of the second respondent, to the position.

DID THE TRIAL COURT ERRED?

15. I have considered the submissions of the parties. I have also noted the case authorities that have been referred to by the three counsels.

16. My conclusive finding is this. Based on the Supreme Court’s decisions in the cases, Kenn Norae Mondiai v. Wawoi Guavi Timbers Co. Ltd (supra) and Re Petition of Michael T. Somare (supra), and also based on the National Court’s decision in the case of Steamships Trading Limited v. Garamut Enterprises Ltd (supra), I find that the leave Court had erred in the exercise of its discretion when it determined the element, sufficient interest.

17. Let me explain. The leave Court’s finding on the question of sufficient interest was, in my view, restrictive. It was based on the consideration which may be summarised as follows: Whether the appellant had a tangible or a legal right or interest in law which may have had been violated or affected, that is, by the decision of the first respondent that was made on 2 August 2018. The leave Court, in its own words, found that and I quote, the applicant cannot complain that he was deprived of any right or interest in a situation where his appointment was never concluded legally. I find that the fact that the appellant had applied for the position and the fact that his appointment had been revoked by the first respondent, themselves were sufficient enough to establish that he had sufficient interest in the matter. Sufficient interest meaning the interest to inquire on whether due process had been followed by the first respondent in its decision, that is, its decision to revoke the appellant’s appointment and to appoint the second respondent, to the position, on 2 August 2018. The leave Court also erred, in my view, when it did not proceed further and consider whether the appellant, as a citizen and regardless or together with his private or personal interest in the matter, had a genuine public concern or complaint in his application for leave to apply for judicial review. I say this because I note that the appellant had also pleaded his standing in that regard or capacity, that is, as a citizen, in his pleaded Statement.

POWERS OF THE SUPREME COURT ON RELIEF

18. I note that the leave Court did not consider all the elements that were required to be established by the appellant at the leave stage, in its decision. Apart from the element sufficient interest, they were, (i) arguable case, (ii) undue delay and (iii) exhaustion of statutory or administrative remedies (the 3 elements). So I would have to ask myself this. “What is the appropriate relief that this Court should grant under the circumstances or given my findings herein?”

19. The Supreme Court’s powers on hearing and granting relief on appeals or reviews are stated under the Constitution and the Supreme Court Act Chapter No. 37 (the Supreme Court Act). The relevant provisions are sections 155(2) and (4) (the national judicial system) of the Constitution, and sections 6(2) (appeal to be by way of rehearing), 8(1)(e) (supplemental powers of supreme court) and 16 (decision etc on appeal) of the Supreme Court Act.

20. Section 155(2) of the Constitution states:

The Supreme Court—

(a) is the final court of appeal; and

(b) has an inherent power to review all judicial acts of the National Court; and

(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.

21. Section 155(4) of the Constitution states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

22. Sections 6(2), 8(1)(e), and 16 of the Supreme Court Act state:

Section 6(2)

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.

Section 8(1)(e)

For the purposes of this Act, the Supreme Court may, if it thinks it necessary or expedient in the interests of justice to do so ... exercise in relation to the proceedings of the Court any other powers that may for the time being be exercised by the National Court on appeals or applications.

Section 16

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 judgement; or

(c) give such judgement 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.

23. When I consider these and look at the ground of appeal, I note this. The appeal, although is against the whole of the leave Court’s decision, is limited to the leave Court’s findings on only one of the 4 elements that is required in an application for leave to apply for judicial review. That element of course is sufficient interest. And having upheld the ground of appeal, this effectively means that I have overturned the leave Court’s decision on lack of sufficient interest. And despite my said finding, I note that the leave Court has not considered nor has it deliberated upon the remaining three elements.

24. That being the case, it is my view that the proper option under the circumstances of this case, would be to exercise my powers under section 16(b), (c) and (d) of the Supreme Court Act. I would reverse the judgment and find that the appellant has sufficient interest. I would also reinstate the leave application and remit the matter back to the National Court. I would order that the leave Court shall continue with the re-hearing of the leave application but only in relation to or limited to the other 3 elements, namely, (i), whether the applicant has an arguable case, (ii), whether there was undue delay and (iii), whether the applicant had exhausted all statutory or administrative remedies for seeking such relief before he commenced the judicial review proceeding. The 4^th element, sufficient interest, being upheld, has been determined and shall not be an issue for consideration before the leave Court.

25. I also find that the interest of justice demands that I choose the above options as the way forward in relation to the matter after this appeal.

COST

26. I will order that cost follow the event on a party/party basis to be taxed if not agreed.

ORDERS

27. I make the following orders:

(i) The appeal is allowed and proceeding OS (JR) 734 of 2018 is reinstated.

(ii) The matter shall be remitted back to the leave Court for re-hearing and determination of leave to apply for judicial review in relation to the other elements or tests, namely, whether the appellant has an arguable case, whether there was undue delay and whether the appellant had exhausted all the statutory or administrative remedies before he commenced the judicial review proceeding.

(iii) The leave Court’s decision made on 19 December 2018 that the appellant has no sufficient interest is replaced with this Court’s decision that the appellant has sufficient interest.

(iv) The respondents shall pay the appellant’s cost of the appeal on a party/party basis which may be taxed if not agreed.

(v) Time for entry of these orders is abridged to the time of settlement by the Registrar of the Supreme Court which shall take place forthwith.

_______________________________________________________________
Young & Williams Lawyers: Lawyers for the Appellant
M S Wagambie Lawyers: Lawyers for the First & Third Respondents
Thomas & Co Lawyers: Lawyers for the Second Respondent