SC2732
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 15 OF 2024 (IECMS)

BETWEEN:
WIKO DEVELOPMENT CORPORATION LIMITED
Appellant

AND:
BENJAMIN SAMSON in this capacity as the SECRETARY OF DEPARTMENT OF LANDS AND PHYSICAL PLANNING
First Respondent

ALA ANE in his capacity as the REGISTRAR OF TITLES
Second Respondent

JOEL PONGOPIA in his capacity as the SENIOR COMPLIANCE OFFICER – ALIENATED LANDS DIVISION
Third Respondent

THE HONOURABLE JOHN ROSSO, MP in his capacity as the MINISTER FOR LANDS & PHYSICAL PLANNING
Fourth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

WAIGANI: COLLIER J, GEITA J, ANIS J
30 APRIL 2025

PRACTICE AND PROCEDURE – whether application for leave for judicial review can be rejected on basis of undue delay alone – relevant principles for granting leave for judicial review – construction of Order 16 Rule 4(1) of National Court Rules – exercise of discretion – whether consideration of substantial hardship or prejudice or good administration required under Order 16 Rule 4(1) when rejecting leave on basis of undue delay.

At material times, the appellant was the registered proprietor of a 99-year State Lease subject to a forfeiture notice. There was an over seven-year delay in the appellant making an application for leave for judicial review of the notice in the National Court. The primary Judge rejected the application on the basis of undue delay and absence of reasonable explanation for the delay. The appellant appealed the whole of the decision of the National Court, contending that the primary Judge did not properly consider evidence explaining the delay, that his Honour did not consider substantial hardship or prejudice and that his Honour was not able to reject the application for leave for judicial review on the basis of undue delay alone.

Held: 

Appeal upheld with costs ordered against the fifth respondent. Consideration of substantial hardship or prejudice or good administration is required by Order 16 Rule 4(1) of the National Court Rules when determining whether leave for judicial review should be refused on the basis of undue delay.

Cases cited
Matava v Sungi [2024] SC2567
Mari v Marape [2022] SC2311
Pomata Investment Ltd v Utpagarea [2020] SC1943
Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] SC1746
Sekesu Sisapi Land Group Inc ILG No 2121 v Turama Forest Industries Ltd [2010] SC1072

Counsel
Ms P Tumutai for the appellant
No appearance for the respondents

REASONS FOR JUDGMENT

1	BY THE COURT: Before the Court is a notice of motion filed 27 March 2024 appealing the whole of the decision of the National Court in OS (JR) No. 35 of 2023 delivered on 16 February 2024. 

2	The present appeal concerns whether the primary Judge erred in rejecting the appellant’s application for leave for judicial review on the basis of undue delay alone. It is clear that the application was to be made within four months of the decision sought to be reviewed, and the delay here was one of over seven years.

background

3	At material times, the appellant was the registered proprietor of a 99-year State Lease for business purposes over property described as Volume 2 Folio 141, Section 4, Allotment 31, Ialibu Town, Southern Highlands Province (the Property). 

4	On 11 August 2014, the appellant filed National Court proceedings (OS No. 542 of 2014) seeking orders for vacant possession of the Property following alleged illegal occupancy by the third defendant amongst others.

5	On 27 June 2015, the appellant received a notice to show cause from the Department of Lands and Physical Planning (the Department) dated 30 March 2015. The notice to show cause was posted on 13 April 2015.  The inference which is open is that the notice remained in the Office of the Department for two weeks, and then was in transit in the post for two and a half months.

6	The notice to show cause required the appellant to show cause why its lease over the Property should not be forfeited on the basis that the appellant had failed or neglected to comply with improvement covenants and conditions as stipulated in the lease.

7	On 7 July 2015, the appellant’s lawyers responded to the notice to show cause by outlining, inter alia, improvements made to the Property by the appellant exceeding the value of K40,000.

8	On 27 July 2015, the Minister for Lands and Physical Planning (the Minister) issued a forfeiture notice in respect of the lease, which was gazetted on 29 October 2015.

9	There then followed a significant number of steps executed by the appellant referable to challenging the forfeiture of the lease, including:

•	On or about 14 January 2016 the appellant asked his lawyers to write to the Minister alleging that the forfeiture of the lease was illegal as due process had not been followed. A response to that letter was received 9 months later.
•	On 9 October 2017 the appellant filed complaints against officers of the Minister alleging corruption. Those complaints were apparently forwarded to the Fraud and Complaints Unit within the Department to conduct investigations. 
•	Following completion of those investigations the third defendant was sent a notice on 10 September 2018 to attend an interview with the Fraud and Complaints Unit. It appears that the third defendant declined to attend scheduled interviews.
•	On or about 4 December 2018 the appellant wrote again to the Minister.
•	On 1 January 2019 the Minister directed the Acting Secretary to investigate the appellant’s complaints relating to the forfeiture of the lease. The appellant was not made aware of any outcome of such investigation.
•	A new Minister was subsequently appointed following a change of government. On or about 3 October 2019 the appellant wrote to the new Minister attaching a copy of material sent to the previous Minister.
•	The appellant contended that it followed up with the Department every week for the following 18 months, but received no response.

10	On 22 September 2020, the appellant filed a writ of summons in the National Court challenging the forfeiture notice. These proceedings were dismissed on 2 August 2021 as the forfeiture notice was to be challenged by way of judicial review and not a writ of summons.

11	The appellant applied for leave for judicial review of the forfeiture notice by way of its notice of motion filed 28 April 2023. 
PRIMARY JUDGMENT

12	The primary Judge heard and determined the application for leave for judicial review at the hearing of 16 February 2024. Lawyers for both the applicant and the 1st, 2nd,4th and 5th defendants were present and made submissions.

13	At the hearing an issue raised early was the significant delay in the filing of the process in the National Court. 

14	The lawyer for the applicant (the now appellant), Ms Tamutai, took the primary Judge through the evidence she contended explained the reasonableness of the delay. After hearing from the lawyer for the respondents, Ms Narokobi, the primary Judge noted:

HIS HONOUR: Okay, that is fine with your submissions. The applicant counsel, I am looking at your submissions – well, submission and trying to – I see the reasons that you are speaking of with respect to complaints filed, but how you get around the reality that your client would have had legal counsel and they would know the rules with regard to judicial review and the time reality even if the applicant was unaware personally? Let us assume the applicant was unaware personally of this time delay requirement of four months or less.
15	Ms Tamutai submitted that the applicant did not make an application for judicial review to the Supreme Court within the required timeframe – which was four months from the date the forfeiture notice was gazetted – because of delays in receiving correspondence from the Department, and because the appellant believed that progress was subsequently being made by way of internal investigations by the Department. 

16	Ms Tamutai further submitted that despite the undue delay, the primary Judge should consider that the defendant would experience minimal prejudice or hardship if leave was granted for judicial review.

17	The primary Judge concluded:

HIS HONOUR: Okay, counsel, I am prepared to make a decision on this. I just – there is just one question that I think you would be able to answer or help me with. Is ignorance of the law a defence for proceedings arising from a breach? Because there is a breach, you have admitted there is a breach; the four-month undue delay. There is no question there has been undue delay and you are pleading ignorance. That is really what you are saying. You have given reasons why there is ignorance but I am not chasing the reasons, I am looking at the fact that you have pleaded verbally, orally – my client did not know. My client had legal advice, but my client did not know. 
So, it comes down to unaware, and then you give the reasons as to why the client was unaware. And in that case, it makes it very difficult for this court to be persuaded because if you look at the defence counsel's submission where in the National Court where Justice Shepherd was the presiding judge, the time limit applies unless the court can be persuaded otherwise. So, you are right to have come or at least attempted to come here to seek leave for judicial review to persuade the court. However, the court is not persuaded based on your submission. And insofar as you have not been able to get over that hurdle of undue delay, the others are clear; local standi, sufficient interest, maybe an arguable case. We can get past those three but the fourth hurdle in this case is what stops this leave application from being able to move any further.
So, with that reality, the leave application for this judicial review is refused. The costs associated with this will be borne by the applicant in favour of the first, second, fourth and fifth defendants. Time abridgment for the registry protocols apply…
submissions

18	The appellant filed written submissions in this appeal. No written submissions were filed by the respondents.

19	In summary, the appellant submitted that the primary Judge failed to give adequate weight to evidence explaining reasons for the delay as set out in the affidavit of Gregory Pisimi filed 28 April 2023, and which have been set out earlier in this judgment referable to the other actions taken by the appellant to endeavour to resolve its complaints and the alleged absence of response by the respondents.
consideration

20	On 27 March 2024, the appellant filed the notice of motion presently under consideration by this Court. The appellant relied on the following grounds of appeal:

2.1	The learned trial Judge erred in law and mixed fact and law in the exercise of his discretion when he refused the Appellant's application for leave for judicial review on the sole basis of undue delay when he failed to consider:-
i)	the overwhelming evidence provided by the Appellant through the Affidavit of Gregory Pisimi filed in support of the application for leave for judicial review which provided reasonable explanation for the cause of the delay and clearly showed that there were extenuating circumstances that made the delay in bringing the application for leave for judicial review reasonable; and
ii)	the particular circumstance of this case was such that the relief sought to be granted is not likely to cause substantial hardship to anyone; it is not likely to substantially prejudice the rights of any person, nor will it be detrimental to good administration.
2.2	The learned trial Judge erred in law and in mixed fact and law in finding that there was undue delay on the basis that the application for leave for judicial review was filed outside of the four (4) months period required to file an application for leave when he failed to:-
i)	consider the reasons for the delay as provided by the Appellant; and
ii)	provide reasons that the grant of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration as required under Order 16 Rule (4) (1) of the National Court Rules.
2.3	The learned trial judge erred in fact and in mixed fact and law in refusing the Appellant's application for leave for judicial review on the basis of undue delay alone and relying on it to be the determining factor in refusing to grant leave when the Appellant has satisfied the other three (3) requirements of locus standi (sufficient interest), arguable case and exhaustion of administrative remedies and had complied with the requirements under Order 16 Rule (3)(1),(2),(3) and (5) of the National Court Rules.
21	In summary, relevant considerations for the National Court to take into account in assessing an application for leave for judicial review are found in both the National Court Rules 1983 (National Court Rules) (Order 16, r 3 (5), r 3(6) and r 4), and under the general law.

22	In Mari v Marape [2022] SC2311, Anis J said as follows:

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) SC791 and 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 (5)], (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.
23	The Courts however have been consistent in finding that if even one of the considerations for the grant of leave is not satisfied, it is unnecessary for the Court to go on to determine the remaining considerations. Most recently in Matava v Sungi [2024] SC2567 (Matava), the Supreme Court observed:

14.	There are five considerations to take into account when the court decides 	whether to grant leave for judicial review:
(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?
	(NTN Pty Ltd v PTC [1987] PNGLR 70, Darius v Commissioner of Police 	(2001) N2046, Medaing v Minister for Lands and Physical Planning (2010) 	N3917)
15.	We find no error on the part of the primary judge by not specifically 	addressing all requirements. His Honour found that the appellant 	lacked locus standi and that he had no arguable case. His Honour was 	not required to address the other requirements. No error of law was committed in the manner contended for by the appellant.
(emphasis added)
24	In the present case the primary Judge determined the case referable only to the issue of undue delay. Provision for consideration of the issue of delay in the context of an application for leave for judicial review is found in Order 16 r 4 of the National Court Rules which relevantly provides:

4.	Delay in applying for relief 
(1)	Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant— 
(a)	leave for the making of the application; or 
(b)	any relief sought on the application, 
if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. 
(2)	In the case of an application for an order of certiorari to remove any judgement, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of sub-rule (1) is four months after the date of the proceeding. 
25	In line with such authorities as Matava, his Honour was entitled to determine the case before the National Court on the sole basis of undue delay. 

26	In our view, ground of appeal 2.3 is not substantiated.

27	There is a considerable body of case law which requires examination of the question of undue delay to be carried out in consideration of whether a reasonable explanation for the delay has been given by the applicant for leave for judicial review. Such consideration is consistent with examination of the adjective “undue” for the purposes of Order 16 r 4. “Undue” is defined in the Macquarie Dictionary to mean:

(1)	Unwarranted, excessive; too great: undue haste.
(2)	Not proper, fitting or right; unjustified: to exert undue influence.

28	Whether a reasonable explanation for delay in applying for leave for judicial review has been given is relevant to determination by the Court as to whether that delay is “undue”. A reasonable explanation may mean that the delay was not, in fact, undue.

29	However, Order 16 r 4 does not end there. The rule specifically requires the exercise of the Court’s discretion in refusing leave on the basis of undue delay to be in conjunction with a consideration of whether the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. If, in the opinion of the Court, where there has been undue delay and the granting of the relief would be likely to cause such hardship or prejudice, the Court may refuse to grant the leave sought.

30	The primary Judge’s decision was clearly made in the exercise of a discretion conferred by Order 16 r 4. As explained by Gavara-Nanu J in the case of Pomata Investment Ltd v Utpagarea [2020] SC1943:

47.	The Appellants recognized, correctly, that the granting of leave entailed the exercise of a judicial discretion by the learned primary judge. It was thus necessary for them to demonstrate that his Honour’s discretion miscarried in a way notably described by the High Court of Australia in House v The King (1936) 55 CLR 499, at 504-505, a description adopted for this jurisdiction in, for example, Bean v Bean [1980] PNGLR 307. Thus, it was for the Appellants to demonstrate some error of principle, the taking into account of an irrelevant consideration, a failure to take into account a relevant consideration or some misapprehension as to the facts.
	(emphasis added)
31	Examining the decision of the primary Judge, his Honour plainly had regard to the evidence before him and to which his attention was directed by the lawyer for the appellant as to why there has been such a lengthy delay in applying for leave for judicial review in the present case. His Honour found that the explanation for the delay was not reasonable, and accordingly the period of more than seven years from the decision the subject of the leave application constituted undue delay for the purposes of Order 16 r 4. 

32	In our view, grounds of appeal 2.1(i) and 2.2(i) are not substantiated.

33	The appellant, before his Honour, argued that the grant of relief it sought would not cause substantial hardship or prejudice to the respondents. Further, it is clear from the transcript of proceedings before the primary Judge that the respondents did not make any submissions before the primary Judge to the contrary.

34	In the case of Sekesu Sisapi Land Group Inc ILG No 2121 v Turama Forest Industries Ltd [2010] SC1072, the Supreme Court found that as there was undue delay in bringing an application for leave for judicial review in that case:

7.	… The National Court was therefore obliged to consider the matters set out in Rule 4(1), ie whether granting the relief sought:
•	would be likely to cause substantial hardship to any person;
•	would be likely to substantially prejudice the rights of any person; or
•	would be detrimental to good administration.
(emphasis added)
35	More recently, in the case of Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] SC1746, Injia CJ explained that “the question of undue delay in the first part of Sub-rule 1 is to be alongside the factors appearing in the second part of Sub-rule (1)” (at [9]). His Honour went on to evaluate the extent to which the primary Judge in that case engaged with both parts of Order 16 r 4(1) as follows:

10.	The first part of Sub-rule (1), undue delay in bringing the application for leave for judicial review by 13 years, was given inadequate consideration. The trial Judge gave an oral ruling where he said “the delay has been adequately explained by the numerous attempts that the plaintiff has made to get an administrative decision out of the government” and was unable to obtain registered title. The Judge did not elaborate on how those “numerous attempts” took 13 years to complete.
11.	The second part of Sub-rule 1 was given little or no consideration at all. No consideration was given to whether to grant leave would cause “substantial  hardship to, or substantial prejudice to the rights of any person” or “would be detrimental to good administration”. The subject land formed part of the land occupied by the National Broadcasting Corporation, a public institution. The land was given to the respondent by way of a town sub-division lease for commercial development. The term of the original sub-division lease was a fixed 5 year term. Had the position of the parties substantially shifted in those 13 years? Were the improvement conditions complied with? Were there any subsequent renewal of the sub-division leases? Was the land rezoned? Did any third party acquire any interest in the land? Had there been any improvements erected on the land, by whom and of what value? No such inquiry on the part of the Court occurred. These were important considerations that if considered would have produced a just outcome of the case.
	(emphasis added)
36	Having regard to such authority, in our view, the primary Judge in the exercise of his discretion erred in failing to consider whether the granting of leave would be likely to cause substantial hardship or prejudice to any person or be detrimental to good administration. The two parts of Order 16 r 4(1) must both be addressed where leave is refused on the basis of undue delay – a finding of undue delay without proper consideration of the factors outlined in sub-rule (1) constitutes an improper exercise of discretion. A key reason for this principle is that, notwithstanding a finding of undue delay (including lack of reasonable explanation for the delay) in making an application for leave for judicial review, it is open to the determining Judge to nonetheless grant leave if no hardship or prejudice is occasioned to the respondent, and achieve a just outcome for the case, by taking into consideration such factors as whether substantial hardship or prejudice could be occasioned to the applicant if leave were refused.

37	In our view, grounds of appeal 2.1(ii) and 2.2(ii) are substantiated. 
conclusion
 
38	The appeal is allowed. 

39	In our view, the following orders are appropriate:

(1)	The appeal is upheld.
(2)	The Orders of the National Court made on 16 February 2024 be quashed.
(3)	Leave be granted to the appellant pursuant to Order 16 r 3 of the National Court Rules to apply for judicial review of the decision of the then Minister for Lands and Physical Planning dated 21 July 2015 and published in the National Gazette No:G706 on 29 October 2015 where he forfeited the appellant’s State Lease described as Volume 2 Folio 141 , Section 4, Allotment 31, lalibu Town, Southern Highlands Province.
(4)	The National Court proceedings be reinstated and remitted to the National Court (differently constituted).
(5)	The fifth respondent shall pay the appellant’s costs, to be taxed if not otherwise agreed.

40     The Court orders that:
1.	The appeal be upheld.
2.	The Orders of the National Court made on 16 February 2024 be quashed.
3.	Leave be granted to the appellant pursuant to Order 16 r 3 of the National Court Rules to apply for judicial review of the decision of the then Minister for Lands and Physical Planning dated 21 July 2015 and published in the National Gazette No:G706 on 29 October 2015 where he forfeited the appellant’s State Lease described as Volume 2 Folio 141, Section 4, Allotment 31, lalibu Town, Southern Highlands Province.
4.	The National Court proceedings be reinstated and remitted to the National Court (differently constituted).
5.	The fifth respondent pay the appellant’s costs, to be taxed if not otherwise agreed.
________________________________________________________________
Lawyers for the appellant: Tumutai Lawyers