|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCM NO. 3 OF 2022 (IECMS)
BETWEEN:
JEFFERY MARI
Appellant
V
HON. JAMES MARAPE, MP as the Prime Minister & Chairman of the National Executive Council
First Respondent
AND
NATIONAL EXECUTIVE COUNCIL
Second Respondent
AND:
HON. PILA NININGI, MP, as the Minister for Inter-Government Relations
Third Respondent
AND:
JOSSEPH WARUS, as the Acting Secretary for the Department of Provincial & Local Level Government Affairs
Fourth Respondent
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent
Waigani: Makail, Liosi & Anis JJ
2022: 28th July & 8th November
SUPREME COURT APPEAL – Appeal from refusal to grant leave to apply for judicial review – Test to apply – Locus standi – Sufficient interest – Arguable case – Leave sought to review decision to abolish Local-level Government and establish new Local-level Governments – Decision of National Executive Council – Process of consultation and consent – Organic Law on Provincial Governments and Local-level Governments – Section 28 – National Court Rules – Order 16, rule 3(5)
SUPREME COURT APPEAL – Appeal from judicial review proceeding – Refusal of leave to apply for judicial review – Lack of locus standi – No finding on question of arguable case, exhaustion of alternative remedies and whether subject decision was made by public authority – Whether necessary to make finding on question of arguable case, exhaustion of alternative remedies – National Court Rules – Order 16, rule 3(5) & (6) & 4
PRACTICE & PROCEDURE – Authority to sue in representative proceedings – Locus standi in judicial review proceedings – Distinct rules of practice and procedure – Different considerations applied – National Court Rules – Order 5, rule 13(1) & Order 16, rule 3(5)
Facts:
The appellant was a ward councillor of a Rural Local-level Government (Rural LLG) and President of the Rural LLG. As President, he was also a member of the Provincial Executive Council and Assembly including holding the position of Chairman for Commerce, Culture and Tourism Committee in the Provincial Government. By a National Executive Council decision, the Rural LLG was abolished and two new LLGs were established. Because of this, the appellant was no longer the President of the Rural LLG and member of the Provincial Executive Council and Assembly including Chairman of the Committee. He applied for leave to review the NEC decision. The primary judge refused leave because His Honour found that the appellant failed to establish locus standi. The primary judge further held that because locus standi was a threshold issue, the question of arguable case was inconsequential. He appealed against the refusal of leave.
Held:
Cases Cited:
Papua New Guinean Cases
Papua New Guinea Air Pilots Association v. Director of Civil Aviation and National Airline Commission [1983] PNGLR 1
Simon Mali v. The State (2002) SC690
Curtain Bros (PNG) Limited v. UPNG (2005) SC788
The State & Sam Akoita v. Central Provincial Government (2009) SC977
NTN Pty Ltd v Board of the Post and Telecommunication Corporation and 2 Ors [1987] PNGLR 70
Trista Abaijah v Alan Mana (2015) N6071
Hon Mao Zeming v Justice Timothy Hinchcliffe (2005) SC791
Mathew Sisimolu & 1 Or v Phillip Kende and Ors (2022) SC2267
Paul Asakusa v. Andrew Kumbakor and Ors (2008) N3303
Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22
Kekedo v Burns Philp Ltd [1988-89] PNGLR 122
Aquila Sampson v NEC and Ors (2019) SC1880
Aaron Dupnai and Ors v Brian Weke and Ors (2016) SC1525
Re Petition of Michael Somare [1981] PNGLR 265
David K Allolim v The Independent State of Papua New Guinea (2018) SC1735
Steamships Trading Limited v. Garamut Enterprises Ltd (2000) N1959
Kenn Norae Mondiai v.Wawoi Guavi Timbers Co. Ltd (2007) SC886
Don Pomb Polye v Sir Peter Ipatas and Ors (2019) N8035
Overseas Cases
Australian Conservation Foundation Inc v. Commonwealth of Australia (1980) CLR 493; 54 A.L.JR. 176
R v. Inland Revenue Commissioners: Ex parte National Federation of Self Employed and Small Businesses Ltd [1980] 2 All E.R. 378
Counsel:
Mr. J. Aku, for the Appellant
Ms. B. Kulumbu, for the Respondents
8th November, 2022
1. MAKAIL J & LIOSI J: The appellant submitted that this appeal can be decided on two threshold issues. They are:
(a) Whether the appellant has locus standi to file judicial review proceedings in the National Court; and
(b) Whether there is an arguable case in the judicial review proceedings in the National Court.
Brief Facts
2. The appellant alleged that he was a ward councillor of Pura 2 Ward of Kandep Rural Local-level Government (Rural LLG) and President of Kandep Rural LLG including a member of the Enga Provincial Executive Council and Assembly until the National Executive Council decided on 16th December 2021 (“NEC decision”) to abolish Kandep Rural LLG and establish two new LLGs. They were Mariant LLG and Lai LLG.
3. The NEC decision is described as Decision No. 412/2021 and published in the National Gazette (No. G904) on 31st December 2021. Because of this decision, he no longer held the office of President of Kandep LLG and member of Enga Provincial Executive and Assembly. Aggrieved by this decision, on 20th January 2022 he filed judicial review proceedings to have the National Court review it. On 10th February 2022, he applied for leave for judicial review pursuant to Order 16, rule 3 of the National Court Rules (“NCR”).
4. In the ex tempore ruling we read from the transcripts of the proceedings, the primary judge held that the appellant promptly filed judicial review proceedings and there was no other avenue for him to seek redress except the Court. However, the primary judge held that the appellant’s standing was “very remote” and because of this, the question whether he had an arguable case was “also remote”. Accordingly, leave was refused.
Locus Standi
5. One of the requirements for leave for judicial review under Order 16, rule 3(5) of the NCR is “ ...the applicant has sufficient interest in the matter to which the application relates”. Sufficient interest or locus standi is a phrase that is not defined by Order 16 but has been subject of judicial consideration in this jurisdiction. One of the earliest cases which considered it is Papua New Guinea Air Pilots Association v. Director of Civil Aviation and National Airline Commission [1983] PNGLR 1 at 3. Andrew J adopted the definition given in Australian Conservation Foundation Inc v. Commonwealth of Australia (1980) CLR 493; 54 A.L..JR. 176:
“But depending on the nature of the relief which he seeks a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests and perhaps to his social or political interests”.
6. We adopt the above statement as being the proper test to determine locus standi of an applicant seeking leave to apply for judicial review under Order 16.
7. Mr Aku of counsel for the appellant submitted that the appellant had demonstrated to the primary judge that the NEC decision had caused actual damage to his political interests as it had effectively removed him from the office of President of Kandep LLG and member of the Enga Provincial Executive Council and Assembly. He was also deprived from holding the position of Chairman for the Enga Commerce, Culture and Tourism Committee in the Provincial Government.
8. Ms Kulumbu of counsel for the respondents defended the primary judge’s finding on locus standi because the judge correctly held that the appellant’s interest is too remote or not directly affected by the NEC decision. To hold otherwise would be effectively allowing a busy body other than the Enga Provincial Assembly who is a proper party under Section 28 of the Organic Law on Provincial Governments and Local-level Governments (“Organic Law”) to seek judicial review of the NEC decision.
9. The other ground she relied on is, the NEC decision concerns the Enga Provincial Assembly as a collective body and its decision affected the interests of the Assembly. Where a member of the Assembly seeks to question the validity of the NEC decision, he must obtain the consent of the Assembly to file judicial review proceedings. She urged us to adopt the decision of the Supreme Court in Simon Mali v. The State (2002) SC690 where it held that having the requisite authority to commence legal proceedings is a precondition to a representative action.
10. As the appellant did not obtain the consent of the Enga Provincial Assembly, he “did not satisfy this requirement as to acting in a representative capacity”. That is, “There was no specific authorisation given to him in writing to challenge the NEC decision subject of this proceeding”.
11. If we were to accept Ms Kulumbu’s submission, the first problem is, an authority to sue in a representative action is distinct from locus standi because different considerations apply. The former is a rule of practice and procedure commonly founded in representative actions of which Simon Mali case is arguably the leading case authority. The latter is a specific requirement founded in judicial review proceedings under Order 16, rule 3(5) and application for reviews under Section 155(2)(b) of the Constitution. This is where it is sufficient for an applicant to establish sufficient interest or how the decision sought to be reviewed has prejudiced his interest.
12. The second problem is, practically, it will not work for the obvious reason that Kandep Rural LLG has been abolished and the appellant is no longer its President and a member of the Provincial Assembly. Because of this, he cannot be expected to go to the Provincial Assembly and ask for its consent to commence the judicial review proceedings.
13. Third and final problem is the originating summons is not expressed to be a representative proceeding nor is the appellant suing for and on behalf of himself and the Provincial Assembly which would then qualify it to be a representative proceeding under Order 5, rule 13(1) (Representation: Current interests) of the NCR. For these reasons, this submission is disregarded.
14. This leads us to consider the submissions of counsel on locus standi. Adopting the test set out in PNG Air Pilots Association case (supra), we consider that an applicant will generally have locus standi to bring judicial review proceedings if he can establish actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests including his social or political interests.
15. In the present case, we note that the appellant had demonstrated to the primary judge that he had been prejudiced by the NEC decision when the Kandep Rural LLG was abolished. As it was abolished, he is no longer the President of Kandep Rural LLG. The long-term impact is, he had lost his presidency credentials and can no longer represent the constituents of the Kandep Rural LLG at the Provincial Executive Council and Assembly level. In addition, he had lost the position of Chairman for the Enga Commerce, Culture and Tourism Committee in the Provincial Government.
16. The holding of different positions at the LLG level and Provincial Government level exemplified a political interest which was damaged as a direct result of the NEC decision. The primary judge rejected the appellant’s submissions on these points and held that his interest was too remote and not affected by the NEC decision. It was further held that the proper party to apply for judicial review was the Enga Provincial Assembly. We are satisfied that the primary judge misconstrued Section 28 and this is where an identifiable error has occurred in the exercise of discretion.
Arguable Case
17. The other requirement for leave to apply for judicial review is arguable case. Mr Aku submitted that he had comprehensively addressed the primary judge on the process for abolition and establishment of LLGs in Section 28 of the Organic Law. The process involved consultation and approval by the Provincial Assembly before the NEC to make a final decision. This process was not observed by the NEC. The primary judge erred when she gave it no consideration.
18. Ms Kulumbu submitted that the primary judge made no finding in relation to an arguable case, and it is not necessary for us to consider it. She urged us, on the other hand, to accept the primary judge’s decision that as the appellant had failed to establish the threshold question of locus standi, the question of arguable case is inconsequential.
19. As we have found, the primary judge erred in not holding that the appellant had made out a case on locus standi. The next error which is apparent on the face of the record (decision) is that, as an arguable case is one of the requirements for leave, the primary judge gave it no consideration. By not addressing it and contrary to Ms Kulumbu’s submission that it is consequential, this is where the primary judge erred.
20. Turning to the question of arguable case, we note from the Transcript of the National Court proceedings that Mr Aku made comprehensive submissions (written and oral) supported by evidence that it is arguable that the process of consultation and obtaining of consent from the Provincial Assembly under Section 28 of the Organic Law on Provincial Governments and Local-level Governments prior to the NEC decision was not complied with and demonstrated an arguable case.
21. He reinforced these submissions before us. He submitted that there is no evidence to show that the Provincial Assembly was consulted and consented to the abolition of the Kandep Rural LLG and establishment of the two new LLGs before the NEC decision. The absence of consultation and consent from the Provincial Assembly demonstrated a breach in the process of abolition and establishment of the LLGs and constituted an error of law in the decision-making process under Section 28 (supra) and an arguable case is made out.
22. At this juncture, it is relevant to refer to Section 28. It states:
“28. ABOLITION OF LOCAL-LEVEL GOVERNMENTS.
Subject to the Constitution, a Local-level Government shall not be abolished or in any way amalgamated and its area shall not be altered, without the prior consent of the National Executive Council and of the Provincial Assembly”.
23. On a plain reading of Section 28 in the context of abolition of an LLG, it means that a LLG shall not be abolished unless the Provincial Assembly and NEC give their consent or agree.
24. We uphold Mr Aku’s submissions. It is arguable that the process under Section 28 (supra) was breached by the NEC as there is no evidence that the Enga Provincial Assembly was consulted and consented to the abolition of Kandep Rural LLG and establishment of the two new LLGs. It is a legal issue which will turn on the evidence that will be presented at trial.
Conclusion
25. We note that the primary judge’s refusal of leave is a discretionary judgment. “It may be set aside if an identifiable error has occurred in the exercise of discretion”: see Curtain Bros (PNG) Limited v. UPNG (2005) SC788 and The State & Sam Akoita v. Central Provincial Government (2009) SC977.
26. In this case, we are satisfied that the primary judge made identifiable errors in the exercise of discretion when refusing leave for judicial review. In the exercise of our powers to correct these errors under Section 16(b), (c), (d) and (e) of the Supreme Court Act we may affirm, reverse, or modify the judgment, give such judgment as ought to have been given in the first instance, or remit the case in whole, or in part for further hearing, or order a new trial.
27. In the notice of motion constituting the appeal, the appellant sought orders that in the event that the appeal is upheld, the decision of the primary judge be quashed and substituted with an order that leave for judicial review be granted, the proceedings be reinstated and remitted for substantive hearing.
28. We agree. The matters operating in favour of the appellant are these; the primary judge held that he promptly filed the judicial review proceedings and there is no other avenue by which he may seek redress. On appeal, he has demonstrated that he has locus standi and an arguable case before us.
29. In the exercise of our discretion conferred on us by Section 16 (supra), we grant these orders; the appeal is upheld, the decision of the primary judge to refuse leave for judicial review is quashed, leave is granted to the appellant to apply for judicial review, the proceeding is reinstated and remitted to the National Court for trial on a date and time to be fixed by the next available judge other than the primary judge.
30. Further, we order the appellant to file and serve a Notice of Motion pursuant to Order 16, rule 5 of the National Court Rules within fourteen (14) days of this order. Finally, we order the respondents to pay the costs of and incidental to the appeal.
Order
31. The final orders of the Court are:
32. ANIS J: This is the substantive hearing of the appellant’s Notice of Motion (Application), that is, a judicial review appeal filed under Order 10 of the Supreme Court Rules 2012 (as amended) (SC Rules).
BACKGROUND
33. The decision appealed against was made by a judicial review leave Court (leave Court/Judge) on 10 February 2022. The court file reference for the leave Court was OS(JR) No. 7 of the 2022 (National Court proceeding/OS 7 of 2022). On the said date, the leave Court refused the appellant’s application for leave to apply for judicial review, and the National Court proceeding was dismissed.
34. The appellant comes from Kandep, which is a district in Enga Province. Kandep District, prior to 16 December 2021, had 2 local level governments, namely, (i), Kandep Rural Local Level Government (KRLLG), and (ii), Wage Rural Local Level Government. The appellant was an elected Councilor or Council Member of the KRLLG which had a total of 36 councilors. The appellant and the 35 councilors were elected in the 2019 Local Level Government Election, for a term of 5 years. Their term in office would have expired in 2024. The appellant was also the elected President for the KRLLG. His appointment as President of the KRLLG, by law, also qualified him as a member of the Enga Provincial Assembly and the Enga Provincial Executive Council. He was also appointed as the Chairman of Commence, Culture and Tourism Division in the Enga Provincial Government.
35. I refer to the appellant’s filed Statement Under 16 Rule 3(2) of the National Court Rules (Statement). The Statement is contained at page 8 of the Application. The appellant’s grievance, according to the Statement, is this. On 16 December 2021, the second respondent, in its decision No. 412/2021 made in its special meeting No. 34/2021, resolved as follow:
(a) Reinstatement of some purported 22 Wards of Kandep Rural Local Level Government in Enga Province but the names of those purported 22 wards are not mentioned in the decision of the NEC; and
(b) Splitting of Kandep Rural Local Level Government into two (2) Local Level Governments, namely Mariant Rural Local Level Government and Lai Rural Local Level Government.
36. Based on the 2 resolutions, on 31 December 2021, the Acting Governor-General, Job Pomat, acting in accordance with the advice of the second respondent and recommendation by the Minister for Inter-Government Relations:
(a) Abolished KRLLG in Enga Province; and
(b) Established two (2) new Local Level Government, namely, Mariant Rural Local Level Government and Lai Rural Local Level Government.
37. The Acting Governor-General published his decision in the National Gazette No. G904 on 31 December 2021.
38. The appellant had asserted before the leave Court, amongst others, the following:
39. The appellant had argued that as a direct result of the above decisions, he was displaced from his positions, namely, as a ward Councilor for Pura 2 Ward of KRLLG, as the Council President for KRLLG, as a member of the Enga Provincial Assembly, as a Member of the Enga Provincial Executive Council, and as the Chairman of Commence, Culture and Tourism within the Enga Provincial Government.
40. He had also alleged that the decisions of the third respondent had deprived him of his salaries, allowances, and benefits from the above offices.
ISSUES
41. The main issues in my view are as follows, (i), whether the leave Court erred in finding that the appellant had no standing or sufficient interest in the matter, and, (ii), regardless of the first issue, whether the leave Court erred in not proceeding to consider all the relevant requirements and in particular, the element, arguable case, when it exercised its discretion and refused leave to apply for judicial review.
GROUNDS OF APPEAL
42. The appellant pleads 2 main grounds of appeal. He firstly alleges that the leave Court erred when it found that he had no standing or sufficient interest in the matter. He secondly alleges under grounds 2 and 3, that the leave Court erred when it found that there was no arguable case.
PRELIMINARY CONSIDERATION
43. I will address the second issue first as a preliminary issue since it is not dependent upon the first, and if I determine that in the affirmative then there would be no need to consider the first issue, and the appeal may be allowed.
44. An application for leave for judicial review involves exercise of discretion. The discretion must be exercised judicially. See cases: NTN Pty Ltd v Board of the Post and Telecommunication Corporation and 2 Ors [1987] PNGLR 70, Trista Abaijah v Alan Mana (2015) N6071, Hon Mao Zeming v Justice Timothy Hinchcliffe (2005) SC791and Mathew Sisimolu & 1 Or v Phillip Kende and Ors (2022) SC2267.
45. Judicial review has exclusive provisions under Order 16 of the National Court Rules (NCR). To exercise the discretion, the leave Court should be satisfied that (i), the applicant has locus standi [Order 16 Rule 3 (6)], (ii), the applicant has an arguable case, (iii), there was no undue delay in filing the leave application [Order 16 Rule 4], and (iv), the applicant had exhausted all administrative remedies (or that was not necessary) before the applicant applied for leave for judicial review [Order 16 Rule 3(6)]. See cases: Paul Asakusa v. Andrew Kumbakor and Ors (2008) N3303, NTN Pty Ltd v Board of the Post and Telecommunication Corporation and 2 Ors (supra), Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22, Kekedo v Burns Philp Ltd [1988-89] PNGLR 122 and Aquila Sampson v NEC and Ors (2019) SC1880.
46. In 2016, this Court in Aaron Dupnai and Ors v Brian Weke and Ors (2016) SC1525, added a further consideration as relevant in an application for leave, that is, whether the decision sought to be reviewed was of a public authority. I accept this requirement as one of the relevant considerations except or save to say that it goes to the jurisdiction or competency of a judicial review. Thus, if it is proven at the leave stage, the leave Court is obliged to dismiss the proceeding for being incompetent. In other words, the requirement is mandatory as opposed to the other four requirements where the leave Court may, in the exercise of its discretion, determine and grant or otherwise.
47. The appellant claims that the leave Court should have also considered the other requirements, particularly, arguable case, before deciding whether to grant or refuse leave.
48. Such an argument, I note, was similarly raised in Aaron Dupnai and Ors v Brian Weke and Ors (supra). At pp 23 to 27, this Court stated:
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.
49. I see no compelling reason or basis to depart from the above decision. But that said, I ask myself this question. Whether, in order to be regarded as exercising one’s discretion judicially, means that one should or must first of all, consider or be seen or perceived to consider, all of the requirements that are applicable for or in an application for leave for judicial review. Ideally, I would say “yes”. The primary role of the leave Court in judicial review proceedings, is to process or filter intended judicial review matters so that only meritorious grievances are permitted to pass on to the second stage of the proceeding. It is preferable, in my view, that the leave Court should briefly inquire and satisfy itself, that all the requirements have been met before or at the same time that it is considering and deciding on the contested requirements, that is, those that are raised by the parties. It is also important to note, except for the State, that leave applications are heard ex-parte as of right. Other parties that are or may be directly affected by the decision that is sought to be reviewed, have no right of audience before the leave Court. As such, it is incumbent upon the leave Court to ensure as much as possible that it has considered all the requirements, thus saving time for arguments on the same issue(s) at a later date or at the hearing the judicial review application.
50. However, having made these general observations, it may depend on the circumstances of each case whereby it may only be necessary to consider just 1 or 2 of the requirements that may be raised as contentious. Case law suggests that sometimes the requirement of standing may be tied in with the requirement of arguable case, as I will later discuss below, thus it may be that they (i.e., requirements of standing and arguable case) should be considered together where required to by a leave Court before deciding whether or not to exercise its discretion.
51. Coming back to the present matter, the leave Court’s decision was ex tempore. It is contained in the transcript of proceedings (transcript). A certified copy of the transcript is annexed to the affidavit of Mr Aku filed on 20 April 2022. The leave Court stated at line 10 pp 22 of the AB:
That brings me to the question of whether there is an arguable case? I am of the view that the plaintiff’s standing is very remote. Very remote to the decision as an individual. Given that his standing is remote, whether he has an arguable case is also remote. And at this juncture, I will not allow such a case to go for full judicial review and take up the full court’s time when I am of the view, his standing is remote.
52. Perusing the transcript, I make this observation. It is accepted that the leave Court has made findings on the requirements of undue delay and standing. It is also accepted that the leave Court did not make a finding but rather a cursory remark, on the question of an arguable case. It is also accepted that the leave Court did not consider and make findings on the requirements of exhaustion of administrative remedies and whether the decision intended to be reviewed was made by a public body or authority. With that, the leave Court refused to grant leave to the appellant to apply for judicial review.
53. Given the leave Court’s discretion, and in view of this Court’s decision in Aaron Dupnai, I do not see any serious error committed by the leave Court. The leave Court made its decision based on or by drawing its attention to at least 3 of the requirements for leave to apply for judicial review.
54. I therefore answer the second issue in the negative.
STANDING
55. Let me now address the main issue. Did the leave Court erred because the appellant did not have standing or locus standi?
56. The leave Court’s decision on standing is this. It said the appellant filed the proceeding not in his representative capacity on behalf of the Enga Provincial Assembly, but rather, in his personal capacity. The leave Court’s finding was made premised on the interpretation of s 28 of the Organic Law on Provincial and Local-Level Government (OLPLLG). The appellant had relied on s 28 to argue the merit of the matter before the leave Court. He argued that the Enga Provincial Assembly did not give its consent under s 28, which was a mandatory prerequisite, before the decision was made to abolish the KRLLG. As such, appellant submitted before the leave Court that the decision of the second respondent to abolish the KRLLG was ultra vires and or was in breach of s. 28.
57. Section 28 of the OLPLLG reads:
28. Abolition of Local-level Governments.
Subject to the Constitution, a Local-level Government shall not be abolished or in any way amalgamated and its area shall not be altered, without the prior consent of the National Executive Council and of the Provincial Assembly.
58. The leave Court stated, and I will paraphrase, that only the Enga Provincial Government had standing by virtue of s 28. As such and without its consent or authority, the appellant did not have standing to commence the judicial review proceeding to seek leave to review the concerned decision of the second respondent.
59. With respect, I find that the leave Court erred in that regard. The appellant, in my view, clearly had or has standing in the matter. His various positions as Ward Councilor for Pura 2 Ward of KRLLG, as the Council President for KRLLG, as a member of the Enga Provincial Assembly, as a Member of the Enga Provincial Executive Council, and as the Chairman of Commence, Culture and Tourism within the Enga Provincial Government, were all directly affected by the second respondent’s decision of 16 December 2021. He is personally affected because he is displaced and can no longer earn his salary and other benefits that he had been entitled to, from these various positions. His interest as a public official and representative too have been affected by the same decision. The concern also appears to be real and not speculative. It is also based on public interest consideration given (i), the abolishment of and creation of the various LLGs concerned and (ii), the termination of the 36 wards and councilors where the appellant was part of. Should these not be a matter of public interest or concern? Thirdly, the appellant’s interest as a private citizen of this country has been affected. The second respondent is a public body. Its decision is subject to review and to the laws of the country at large.
60. It is not correct to presume, as submitted by the respondents, that only the Enga Provincial Assembly has standing under s 28 of the OLPLLG. The said provision is the law that must be followed in the event a local level government is to be abolished. It does not, however, expressly restrict or give exclusive ‘standing right’ to the Enga Provincial Government or Assembly as the sole body that may challenge a decision that is made under it (i.e., s 28).
61. In fact, the tests for determining standing or locus standi in judicial review applications are different, and they are inclusive or objective rather than exclusive or subjective. 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 Schedule 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 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.”
62. Further, this Court in David K Allolim v The Independent State of Papua New Guinea (2018) SC1735, Aquila Sampson v NEC and Ors (supra), and recently in Mathew Sisimolu & 1 Or v Phillip Kende and Ors (supra), approved Sheehan J’s views on standing in Steamships Trading Limited v. Garamut Enterprises Ltd (2000) N1959. His Honour stated, and I quote:
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.
63. I also refer to this Court’s decision in 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.
64. In concluding, I refer to the strikingly similar case of Don Pomb Polye v Sir Peter Ipatas and Ors (2019) N8035. Makail J, who is a member of this bench, heard the matter which had similar type background. On the question of standing, which was raised at the substantive hearing, His Honour stated, which I adopt, as follows:
4. The plaintiff was granted leave to seek judicial review of the subject decision on the ground that he had satisfactorily demonstrated, amongst other things, that he had standing to bring the application for judicial review. Even the defendants’ objection to his standing at trial and the strong submission that the Court was misled to find that the plaintiff had standing does not cast any shadow of doubt on his standing as a private citizen from Kandep District whose interest and that of the people of Kandep have been impacted by the subject decision. Put simply, he is not a stranger or a busy-body attempting to undermine or frustrate a decision of a higher authority but a person with a genuine concern in ensuring that due process had been observed to arrive at the subject decision. The objection must, therefore, fail.
65. I would say that similarly, and in this case, the appellant is not a stranger or a busy-body who is attempting to undermine or frustrate a decision of a higher authority. Rather, the appellant is from Kandep in Enga Province. He is a person with genuine concern who is seeking to ensure that due process had been observed to arrive at the decision which was the subject of the intended judicial review in OS 7 of 2022. In Don Polye, His Honour dismissed the judicial review because His Honour was satisfied on evidence that had been adduced, amongst others, that the Enga Provincial Government had given its consent for the abolishment of wards under the KRLLG, as required under s 28 of the OLPLLG.
66. In comparison, I observe that in the present intended judicial review challenge which has been dismissed, the appellant had directly questioned and asserted that no written consent was obtained by the respondents when they acted and abolished the KRLLG and created a new local level government.
FINDINGS
67. I will uphold the first ground of appeal in favour of the appellant.
68. Grounds 2 & 3 are misconceived, and I dismiss them. As we had indicated to counsel for the appellant at the hearing, the grounds were formulated as if the leave Court had addressed them, and in so doing, had made a full determination on the question of arguable case. But as revealed in the transcript of proceedings, the Court only made a cursory remark on the question of arguable case based on its findings on standing.
69. In so doing, I reinstate the judicial review proceeding described as OS(JR) No. 7 of the 2022 and the appellant’s Originating Summons that seeks leave to apply for judicial review filed on 20 January 2022.
WAY FORWARD
70. In upholding the first ground of appeal, what should be the way forward? Should I consider and determine the leave application, or should I refer the matter back to a differently constituted leave Court to hear and determine the balance of the requirements, in this case, the questions of arguable case and perhaps also the question of exhaustion of other administrative remedies?
71. I am minded to determine the leave application. I am reminded that all substantive appeal hearings that are before the Supreme Court, are re-hearings. Sections 6 and 16 of the SC Act state:
6. APPEAL TO BE BY WAY OF REHEARING.
(1) An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court–
(a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and
(b) to draw inferences of fact.
(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.
......
16. DECISION, ETC., ON APPEAL.
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.
(Underlining mine)
ARGUABLE CASE
72. So, is there an arguable case in the present matter?
73. The straight answer to that, in my view, is, “yes, there is.” The main intended challenge concerns the application and compliances with s 28 of the OLPLLG, that is, whether the respondents or the second respondent had obtained the consent of the Enga Provincial Assembly before it passed resolutions and published gazettal notices to abolish the 36 council wards and the KRLLG, and also before it created a new local level government.
74. The question appears meritorious given the requirement of s. 28. Although the respondents had defended the matter at the leave hearing, they did not produce evidence that such consent had been obtained from the Enga Provincial Assembly, which would have been produced before this Court thus may be sufficient for me to find against the appellant on the question of arguable case. In any event, such evidence may be made available later at the actual judicial review hearing, but until such time, what is demonstrated herein is that there is an arguable case.
OTHER REQUIREMENTS
75. In regard to the requirement of exhaustion of administrative remedies, I find that there are no alternative avenues that the appellant may take other than to file the judicial review proceeding.
76. I note that the respondents had argued that the appellant should have sought the permission from the Enga Provincial Assembly who could have questioned their decision. The argument was also raised herein. However, I have rejected it above having ruled that the appellant has standing to seek his redress directly by way of judicial review.
77. I also note that there is no issue in regard to the question of undue delay; is not subject of this review. I can only comment that the leave Court, as noted, was satisfied that there was no undue delay by the appellant in filing his application for leave to apply for judicial review.
78. Finally, I find that the decision of the second respondent made on 16 December 2021, decision No. 412/2021 in its special meeting No. 34/2021, was made by a public body or authority which may be subject to judicial review.
SUMMARY
79. In summary, I uphold the appeal. In so doing, I agree with the orders as proposed by my brother Judges herein.
80. FINAL ORDERS OF THE COURT:
________________________________________________________________
Manase & Co Lawyers: Lawyers for Appellant
Solicitor General: Lawyers for Respondents
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2022/108.html