Bizei v Gabut [2019] PGSC 26; SC1793 (26 February 2019)

SC1793

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 24 OF 2014

GABRIEL MIAI BIZEI
AND ANOTHER
Appellants

v

JOSEPH GABUT AND OTHERS
Respondents

Waigani: Hartshorn J, Logan J, Polume-Kiele J
26 February 2019

JUDICIAL REVIEW – appeal against dismissal of a judicial review application – where appellants brought a claim before a Special Land Commission – where the Special Land Commission as previously constituted dismissed the appellants’ claim – where appellants brought fresh claim to newly-constituted Special Land Commission – where fresh claim dismissed with brief reasons – duty to give reasons – whether reasons given were insufficient – administrative decision-making continuum – reasons should not be viewed in isolation – reasons were sufficient

JUDICIAL REVIEW – where National Court ordered that the Special Land Commission not make a final decision until the conclusion of review proceedings – where Special Land Commission was not served with order – where Special Land Commission made a final decision – whether Special Land Commission’s decision was not served on it – National Court Rules O 13 r 7 – final decision was not illegal

The appellants brought a claim before a Special Land Commission. This claim was rejected by the Commission. Before the Commission could make a final decision about the relevant land dispute, however, its Commissioner unfortunately died. The re-constituted Commission issued a public notice, calling for notices of intention to participate in the hearing of the dispute to be re-lodged. The appellants re-lodged their claim, and it was again rejected by the Commission, with brief reasons given.

The appellants challenged this decision in the National Court, and obtained an order from the National Court, restraining the Commission from making a final decision rejecting the appellants’ claim until after the conclusion of the National Court proceedings. This order was never served on the Commission, which made a final determination of the land dispute. Ultimately, the National Court proceedings were also dismissed.

The appellants appealed from the National Court on two grounds. First that the Commission had failed to afford them natural justice in its failure to give sufficient reasons. Secondly, that it had acted illegally by reaching a final decision in spite of the National Court order.

Held:

(1) The Special Land Commission formed part of an administrative decision-making continuum. As such, its reasons for decision must be read in the context of the previous, detailed reasons it gave for dismissing the appellant’s claim. It follows that there was no breach of the rules of natural justice.

(2) The Special Land Commission did not act illegally as the National Court order had not been served upon it.

Cases cited:
Papua New Guinea Cases

Geoffrey Vaki v Mathew Damaru [2016] SC 1557
Micah v Lua [2015] PGSC 40 SC 1445

Overseas Cases

Public Service Board of New South Wales v Osmond (1986) 159 CLR 606

Legislations

Constitution s 59
National Court Rules
Land Dispute Settlement Act 1975

APPLICATION

This was an appeal against a decision of the National Court, dismissing an application for judicial review of a decision made by a Special Land Commission.

Counsel

Mr Kubak, for the Appellants
Ms A Nasu, for the Respondents

26^th February, 2019

1. BY THE COURT: On 27 December 2001, his Excellency the acting Governor General appointed a Special Land Commission pursuant to the Land Disputes Settlement Act 1975. The Land Commissioner, Patrick Nasa, was appointed to determine a land dispute in respect of land named generally as the Ramu Nickel and Cobalt project land. In the course of undertaking his duties as Land Commissioner, Commissioner Nasa came on 11 March 2009 to make a determination in relation to an application for registration by the present appellant who asserted an interest for and on behalf of members of the Maure-Mirigua clan.
   
2. That application for registration by the appellant had been made many years after the publication of a notice in 2002 providing an opportunity for the lodging of claims on the land concerned by interested parties. Commissioner Nasa found in respect of the appellant and his group:

Their only reason for being late is that, at first they have been teaming up with or have become part of the current contesting clan, “Maure Duakai Narawa” but because the relationship has become sour in recent times for some ought (sic) reasons which are only known to themselves, have now decided to break away from them and lodge this fresh application under their own clan name, Maure Mirigua clan. Now they are saying that they are the true original genuine customary owners of the land and not the Maure Duakai Narawa.

3. This is the first time this particular group is seeking to be included as a party to contest ownership. In the result, the Commissioner Nasa concluded that the application by the appellant should fail. That decision became the subject of a judicial review proceeding which was heard and determined in the National Court in 2012. The result of that judicial review application was a conclusion by the National Court that Commissioner Nasa’s decision was not unreasonable and that it had been considered and rational decision for which written reasons were duly given. The court concluded that there had been no denial of natural justice as the present appellant, the plaintiff in that proceeding, had been given a reasonable opportunity to register a claim with the Commission but had failed to avail himself with that opportunity.
4. The result was that the judicial review application was dismissed. Sadly, Commissioner Nasa died before completing the task assigned to him by His Excellency. The result was that, his Excellency appointed the first respondents, Commissioners Gabut, Batata and Paonga as replacement commissioners for the Special Land Titles Commission in respect of the land concerned. That appointment having being made, a public notice was issued by them in their capacity as the Land Titles Commission which materially provided “[a]ny customary landowner, individual clan or tribe from the affected area shall re-lodge notice of their intention to participate at the hearing to the Registrar of the Land Titles Commission within 14 days.”
5. That notice was issued on 23 February 2011. The appellant authored in response to that notice to lodge a new application for registration. The Commissioners decided in respect of that fresh application the following:

Maue Mirugua claim – Gabriel Bizei

Interim Order – will not entertain his application until a Court Order is produced. Decision be reviewed when a National Court Order has been produced.

6. On 26 April 2013, the appellant obtained ex parte an order from the National Court which provided that he and those he said he represented, the Maure Mirugua clan to be admitted as a disputing party in the Special Land Titles Commission in respect of the subject land. That order was set aside by the National Court after its return on notice by an order made on 14 June 2013. That order also provided:
   3. The Special Land Titles Commission shall not make a final decision rejecting any claim by the plaintiff [the present appellant] without leave of the court.
   4. The Plaintiff shall take all necessary steps to expedite the hearing of the substantive proceedings, ...
7. On 12 August 2013, the first respondents, Special Land Commissioners, made a decision which finally determined the dispute in respect of the land of the subject land. Further judicial review proceedings were instituted by the appellant challenging the decisions not to register him and the making of the final decision in the circumstances of the earlier court order. The result in the National Court was the dismissal of that judicial review application. It was held that the Commission, in rejecting the further application by the appellant, must have been relying on the previous decision of the Commission for which detailed reasons had been given. The learned primary judge held that, in these circumstances, the reasons for the subsequent decision of the Commission as constituted by the three Commissioners were obvious and self-explanatory. As such that there was no need to repeat them or to give a fresh statement of reasons. His Honour held that for that reason there was no denial of natural justice. It was also held as to the making of the final decision that the Land Titles Commission that it could not be said to have been made unlawfully as there was no evidence that the order of the National Court which had restrained the Commission from making a final decision without the leave of the court have been served on the Commission.
8. These two particular aspects of the judgment delivered in the National Court in respect of that judicial review application became the subject of the present appeal. In each, the appellant asserted that the learned primary judge had been in error. First, the question as to whether the special land commissioners had failed in their duty to observe the requirements of s 59 of the Constitution, and with that an obligation to observe the principles of natural justice should be considered.
9. It was common ground in the present proceeding that s 59(2) of the Constitution carried with it in the obligation to act fairly a duty on the part of administrators to furnish reasons. There is a line of authority in this Court which upholds that proposition. Those authorities are collected in the Court’s judgment in Micah v Lua [2015] PGSC 40 SC1445.
10. Because of that, it was common ground between the parties in respect of the effect of s 59(2) of the Constitution that s 59(2) means it is unnecessary and indeed inappropriate in the circumstances of the present case to consider whether or not the common law of England in relation to the requirement to give reasons is included in the underlying law. The position at common law in England is that an administrator is not subject to a duty to give reasons. However, it is not necessary to reconsider the correctness of the position earlier reached in relation to an obligation to give reasons in this jurisdiction. As to the position at common law in England, and for that matter in Australia, the authorities concerned are connected in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.
11. Proceeding then on the basis that there was an obligation to give reasons, this nevertheless is not a case where the Special Land Commissioners failed to give reasons; they did. They were abbreviated but reasons were given. It was put on behalf of the appellant that those reasons had to be read in isolation. We disagree. The proceedings before the Special Land Commission as reconstituted were part of an administrative decision making continuum which commenced with the appointment in 2011 of a Special Land Commissioner. The reasons concerned were given to the very party whose application for registration had been refused for reasons which were regarded as reasonable by the National Court on subsequent challenge on the judicial review.
12. It was always the function of the Special Land Commission to make a decision on the merits. It was never part of the role of the judicial branch to do other than review the legality on the decision if challenged. That challenge having been heard and determined, it was open to the present first respondent Special Land Commissioners to abbreviate their reasons, particularly to the party already subject to a final determination and refuse to register that party in the absence of a court order. In the circumstances of this case as related, all of the obligations present under s 59 of the Constitution were met. There is no one standard in respect of the requirements of natural justice. It is inherently related in nature and extent to the circumstances of the particular case. And this case against the background described inexorably leads to a conclusion that the reasons were sufficient unto the day.
13. We turn then to the other question at large in the appeal, which is whether or not the decision in August was unlawful because of the existence of that restraining order in June. As to that there is in this jurisdiction in our view a complete answer to be found in the terms of O 13 r 7 of the National Court Rules. That order materially provides:

Rule 7. Service before committal or sequestration.

(1) Subject to these Rules, a judgment shall not be enforced by committal or sequestration unless -

• (a) a minute of the judgment is served personally on the person bound; and

...

(2) A minute of a judgment served under this Rule must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property if -

...

(b) where the judgment requires the person bound to abstain from doing an act within a specified time - the person bound disobeys the judgment or order.

...

(7) The court may dispense with service under this Rule.

14. In this case, there was no order dispensing with the requirement for service. True it is, as the appellant submitted that there was evidence that the first respondents or their lawyers were present in court, but they were not personally present and there is no evidence at all that they were ever served personally with a copy of the order made by the court in June 2013, much less that any order so served bore on it a notice as required by O 13 r 7.
    
15. Further as it happens, the point is not free from authority in Geoffrey Vaki v Mathew Damaru [2016] SC 1557, it was held that a penal order requiring the performance of an act did not give rise to a contempt in the absence of personal service of that order upon the alleged contemnor. That view as so expressed is entirely consistent with the express provision in relation to service in the National Court Rules. That being so, notwithstanding the making of the order in June 2013, there was no illegality that attended the first respondents the Special Land Commissioners, making their decision in August 2013. It was for the appellant to prove by evidence before the National Court that the June 2013 order was ever served on the first respondents. They did not do so. For these reasons, the appeal necessarily must fail.
    

ORDER

For these reasons, we order as follows:

1. The appeal be dismissed.
   
2. The appellant to pay the first and third respondents’ costs of and incidental to the appeal, to be taxed if not agreed.
   

Judgment accordingly.

_________________________________________________________________
Kubak & Kubak : Lawyers for the Appellants
Office of the Solicitor General: Lawyers for the Respondents