Manus Provincial Government v Kasou, The State and Jaha Development Corp Ltd [1990] PNGLR 395 (27 September 1990)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 395 - Manus Provincial Government v Tarsicius Kasou, The State and Jaha Development Corp Ltd 

[1990] PNGLR 395

N917

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MANUS PROVINCIAL GOVERNMENT

V

TARSICIUS KASOU, INDEPENDENT STATE OF PAPUA NEW GUINEA AND JAHA DEVELOPMENT CORPORATION LTD

Lorengau & Rabaul

Ellis J

14-16 May 1990

27 September 1990

ADMINISTRATIVE LAW - Judicial review of executive acts - Standing to challenge - “Sufficient interest” - Determination of ownership of timber rights - Whether Provincial Government has standing to challenge - Forestry (Private Dealings) Act (Ch No 217), s 7(5).

ADMINISTRATIVE LAW - Particular bodies - Functions and powers - Timber rights legislation - Prescribed authority - Power to “make such investigations as it thinks necessary” - Imports power to make reasonable investigations - Forestry (Private Dealings) Act (Ch No 217), s 7(5).

ADMINISTRATIVE LAW - Judicial review of executive acts - Ouster provisions - Statutory exclusion of liability “in civil proceedings” - Not excluding judicial review - Whether excludes orders for costs - Forestry (Private Dealings) Act (Ch No 217), s 7(4) - Constitution, s 155(4).

COSTS - Departing from general rule - Privative clause excluding liability “in civil proceedings” - Discretionary power to refuse costs exercised - Forestry (Private Dealings) Act (Ch No 217), s 7(4).

The Forestry (Private Dealings) Act (Ch No 217) makes provision for the sale and disposal of timber rights subject to certification as to the right to sell by a prescribed authority.

Section 7(5) requires a prescribed authority to “make such investigations as it thinks necessary to ascertain the ownership” of timber, and empowers the prescribed authority to appoint agents for sale.

Section 7(4) provides:

“(4)    The State or prescribed authority is not liable in civil proceedings by reason of—

(a)      any statement in a certificate given by a prescribed authority under this section; or

(b)      the manner in which the information on the basis of which a certificate has been given was obtained.”

Held:

The relevant provincial government had sufficient interest to commence and maintain proceedings for judicial review of the certification as to ownership of timber within a land forest area under s 7(5) of the Forestry (Private Dealings) Act on behalf of numerous customary landowners whose rights were affected by reason, inter alia, of:

(a)      the importance of property rights in terms of local culture;

(b)      the representative nature of the elected government; and

(c)      the genuine concern to right what objectively appeared wrong and should be put right.

SCR No 4 of 1980; Re petition of Somare [1981] PNGLR 265, applied.

(2)      The power in s 7(5) of the Forestry (Private Dealings) Act to “make such investigations as it thinks necessary”, imported a requirement to make reasonable investigations.

Reade v Smith [1959] 78 NZLR 996 and Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997, considered and applied.

(3)      The provisions of s 7(4) of the Forestry (Private Dealings) Act did not operate to exclude the exercise by the National Court of the inherent power of judicial review under s 155(4) of the Constitution.

(4)      Because s 7(4) of the Forestry (Private Dealings) Act was designed to avoid a prescribed authority from becoming liable in civil proceedings a costs order against the prescribed authority would be contrary to that intention and should, in the exercise of discretion, be refused.

Cases Cited

The following cases are cited in the reported judgment:

Arawe Logging Pty Ltd v The State [1988-89] PNGLR 216.

Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320; [1965] 3 All ER 371.

Augustine Olei v The Provincial Land Court at Port Moresby [1984] PNGLR 295.

Errington v Minister of Health [1935] 1 KB 249.

Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898.

Iambakey Okuk v Fallscheer [1980] PNGLR 274.

Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997.

Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.

R v Electricity Commissioners; Ex parte London Electricity Joint Committee [1924] 1 KB 171. )

R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1980] QB 407; [1980] 2 All ER 378 (QBD); [1980] 2 WLR 579; [1980] 2 All ER 378 (CA); [1982] AC 617; [1981] 2 WLR 722; [1981] 2 all ER 93 (HL).

R v Woodhouse [1906] UKLawRpKQB 88; [1906] 2 KB 501.

Reade v Smith (1959) 78 NZLR 996.

Reva Mase v Independent State of Papua New Guinea (Narokobi AJ, 1 October 1980, Judgment No N260, unreported).

SCR No 3 of 1989; Re Forestry (Private Dealings) Act [1990] PNGLR 222.

SCR No 4 of 1980; Re petition of Somare [1981] PNGLR 265.

Van Der Kreek v Van Der Kreek [1979] PNGLR 185.

Judicial Review

This was an application for judicial review of a decision of the first respondent who issued a certificate of authority naming the 14 directors of the third respondent company as the landowners within the Manus West Coast Local Forest Area.

Counsel:

R Taylor, for the applicant.

S Sitapai, for the first and third respondents.

Cur adv vult

27 September 1990

ELLIS J.

HISTORY OF THE PROCEEDINGS

By an originating summons, dated 5 December 1989 and filed 7 December 1989, the Manus Provincial Government sought leave to apply for judicial review in accordance with the provisions of O 16 of the National Court Rules. The contemporaneous statement in support of the application disclosed that the application was seeking an order in the nature of certiorari to quash the decision of Tarsicius Kasou (who became the first respondent) made on or about 9 August 1989 “by way of purported certification under s 7(2) of the Forestry (Private Dealings) Act (Ch No 217) in relation to persons purporting to sell or dispose of timber in the ‘West Coast Manus Local Forest Area’”.

Particulars were given in support of the grounds upon which relief was sought. Those grounds were:

(a)      That the first respondent lacked jurisdiction to make the decision.

(b)      That the procedures required by law to be observed in connection with the making of the decision were not observed.

(c)      That there was no evidence or other material to justify the decision.

(d)      Denial of natural justice.

(e)      Failure to take into account relevant considerations.

(f)      That the decision was so unreasonable that no reasonable decision-maker could ever have come to it.

Following an ex parte application before Konilio J on 2 March 1990, leave was granted, his Honour being satisfied “that the Manus Provincial Government has sufficient interest in the matter to which the application relates”. The court also ordered that copies of the application be served by delivering copies to all community government areas within the Manus West Coast Area and to the first respondent in addition to serving copies on Jaha Development Corporation Pty Ltd (the third respondent) and Kei Beseu Kampani Pty Ltd. An order was also made that the application be advertised through Radio Manus.

Subsequently, the applicant filed a notice of motion seeking discovery and the administration of interrogatories. A further notice of motion, also filed on 5 March 1990, reformulated the prayers for relief in the following terms:

“1.      An order in the nature of certiorari to remove into the Court for quashing the decision of Tarcisius Kasou made on or about 9 August 1989 by way of a purported certification under Section 7(2) of the Forestry (Private Dealings) Act (Chapter No 217) in relation to persons purporting to sell or dispose of timber in the ‘Manus West Coast Local Forest Area’.

2.       That the said decision be quashed forthwith upon removal to the Court.

3.       That the assent of the Minister for Forests given under Section 6(2) of the said Act to an agreement between Jaha Development Corporation Pty Limited and Dominic Palolen, Dr Thomas Mundri, Michael Sendren, Timothy Kundrakei, William Botakeleh, Silas Bomai, Raphael Sindrohi, Silih Sawi, Kela Bonasu, John Kalai, Bernard Molai, Joe Bomanus, Joe Bokundrui and Levi Bomai dated 9 August 1989 be stayed until such time as the Minister receives a further certificate made under Section 7(2) of the said Act in respect of that agreement or an amended agreement.

4.       Such further orders as this Honourable Court deems fit.”

[His Honour then considered matters not calling for report.]

CONTEXT OF THE DECISION CHALLENGED

It is clear that the Forestry (Private Dealings) Act (Ch No 217) creates a sequence of events whereby the sale of timber by customary owners may occur. First, in accordance with the procedures in s 4(1), the Minister for Forests declares the area in question to be a Local Forest Area (LFA) for the purposes of the Act. Secondly, pursuant to s 7, the relevant owners are ascertained. Thirdly, an agreement is prepared. Finally, pursuant to s 6, ministerial assent is required before any such agreement will be effective.

In the present case the declaration of the Manus West Coast LFA was made by the Minister on 5 December 1988 which declaration appeared in the National Gazette on 15 December 1988. The second phase, namely the ascertainment of owners, began with the appointment of the first respondent, then Deputy Premier of the Manus Provincial Government, as the prescribed authority on 8 May 1989 via a declaration gazetted on 11 May 1989 and concluded with the Minister’s receipt of a certificate executed by the first respondent on 9 August 1989. The agreement (referred to as “the Dealings”) was dated the same day and ministerial assent thereto was obtained six days later on 15 August 1989.

The focus of these proceedings is the conduct of the first respondent during the period from 8 May 1989 to 9 August 1989 when, as the prescribed authority, he was the subject of a statutory duty to ascertain ownership of the timber within the West Coast Manus LFA.

Section 7(2) precludes the Minister from approving an agreement for the sale or disposal of timber rights unless he/she receives a certificate from the prescribed authority “that to the best of its knowledge and belief the persons purporting to sell or dispose of the timber have the right to grant the rights the subject of the Agreement”. Of particular relevance to these proceedings is s 7(5):

“For the purposes of sub-section (2), a prescribed authority shall make such investigations as it thinks necessary to ascertain the ownership of the timber, and may appoint an agent who, on behalf of the owners of the timber, or of persons entitled to any compensation or other payment, may —

(a)      execute in his own name all conveyances, transfers, leases, licences, releases and other instruments, and do all other things, necessary or convenient for effecting the sale or disposal of the timber and other rights referred to in Section 5; and

(b)      accept any purchase money, rent, royalty, compensation or other money or things, and distribute it to the persons entitled; and

(c)      accept service of any notice under the Forestry Act or this Act.”

[His Honour considered and summarised all of the evidence of witnesses and the submissions of the lawyers. He found that Mr Kasou had:

(a)      failed to carry out reasonable investigations as to who owned the timber within the LFAs;

(b)      reached a decision which no reasonable decision-maker could have reached;

(c)      failed to take into account relevant considerations;

(d)      demonstrated a suspicion of bias through his comments in favour of the Jaha Development Corporation Ltd.]

RESPONDENTS’ SUBMISSIONS

1.       Pleadings. Mr Sitapai’s first submission was that the applicant had not complied with the National Court Rules by instituting proceedings which did not name the defendants in the originating process. He claimed support from O 4, r 9. There are three obvious answers to this submission. First, these are proceedings for judicial review under O 16 whereby an initial ex parte application is made to the court seeking leave to apply for judicial review. There is nothing in O 16 requiring the likely respondents to be named at that stage and there is no consequence of not naming them given that the application is made ex parte. Secondly, even if the applicant was in error, there was no prejudice shown by the respondents: the orders made on 12 March 1999 as a result of the ex parte application pursuant to the rules, required service of the application upon the first respondent and third respondent. Thirdly, even if some failure to comply with the rules could be established, O 1, r 8 provides that non-compliance with any of the rules does not, per se, render any proceedings void.

2.       Standing. The second submission on behalf of the first and third respondents was that the applicant lacked standing. In the field of the judicial review of administrative or executive action every jurisdiction faces the same problem: how to permit access to the courts without thereby having a multitude of cases commenced by interfering busybodies with no legitimate interest in the decision or subject matter in question. In England and Australia this is achieved by precluding individuals with no direct interest from bringing such proceedings unless they first obtain the permission of the Attorney-General whose functions include that of guardian of the public interest. This potential “floodgates” problem is addressed in Papua New Guinea by the National Court Rules which require any would-be applicant to obtain leave from the National Court for the proposed proceedings.

There can be no doubt that the Manus Provincial Government has the capacity to sue: see s 3 of the Legal Proceedings by and against the Provincial Government Act 1977 and s 3 of the Legal Proceedings by and against the Provincial Government Act 1989. What is in issue here is whether the Manus Provincial Government should be permitted to bring proceedings as an applicant for judicial review of a decision affecting the rights of customary landowners in the West Coast Manus LFA.

SCR No 4 of 1980; Re Petition of Somare [1981] PNGLR 265 involved a consideration of the question of whether the then Leader of the Opposition had the requisite standing to challenge the constitutionality of an Act of Parliament. In a three-two decision Kidu CJ, Kapi J (as he then was) and Miles J held that the Leader of the Opposition had standing. Miles J considered standing as a matter for the court’s discretion; the other two members of the majority specifically rejected the common law rules as to standing. Accordingly, that decision laid the foundation for an approach to the question of standing which is less restrictive and more appropriate to the Constitution and customs of Papua New Guinea. As a decision on the question of judicial review of legislative action, this decision does not, strictly speaking, bind the court in the area of judicial review of executive action. However, similar considerations should, in my view, apply to the extent that there should be no disparity between what constitutes “sufficient interest” in these two types of cases.

I have considered local decisions touching on the question of what constitutes a sufficient interest. It is to be noted that in cases involving property rights, applicants have readily been found to have standing (see Arawe Logging Pty Ltd v The State [1988-89] PNGLR 216) although the distinction here is that the Manus Provincial Government brings these proceedings on behalf of property owners. Augustine Olei v The Provincial Land Court at Port Moresby [1984] PNGLR 295 held that a person who was not a party to the decision in question may nonetheless have a sufficient interest; this was also a case involving an ownership claim in respect of customary land.

Since the local provision in the rules, namely O 16, r 3(5), is based upon the United Kingdom provision O 53, r 3(5), it is understandable that references have been made to English decisions, notably R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1980] QB 407; [1980] 2 All ER 378 (QBD); [1980] 2 WLR 579; [1980] 2 All ER 378 (CA); [1982] AC 617; [1981] 2 WLR 722; [1981] 2 All ER 93 (HL). As Kapi J (as he then was) observed in SCR No 4 of 1980; Re petition of Somare (at 295), the English rule on locus standi was amended as a result of a Law Reform Commission Report in favour of the “sufficient interest” test. I would agree with his Honour’s view (at 295) that “it is not possible to lay down a workable definition for all cases because each case is different. I would leave it to the courts to develop the application of the rule in individual cases”.

In the present case there are six factors which prompt me to hold that the applicant has a sufficient interest. First, the fact that the subject matter of the suit is property rights, on any view an extremely important matter in the local culture. Secondly, since the evidence establishes that the first respondent wrote to the Minister, by letter dated 18 August 1987, falsely claiming that he was writing on behalf of the applicant and with its support. Thirdly, since an action by the Manus Provincial Government, an elected Government, representative of its constituents, is a practical way of bringing this matter of wide concern before the court rather than leaving it to an individual or group of individuals who may not be of high education or literacy skills and who may well be unable to afford to litigate. If this action were dismissed on the ground of standing then a resurrection of the issues raised herein may well eventuate in subsequent, similar proceedings brought by a group of landowners against whom standing could not sensibly be in issue. Fourthly, I would add my endorsement to the following passage in Wade’s Administrative Law (4th ed, 1977) at 608 as quoted by Lord Denning in the Inland Revenue Commissioners’ case [1980] QB 407 at 422; [1980] 2 WLR 579 at 586; [1980] 2 All ER 378 at 390:

“It [the law] should recognise that public authorities should be compellable to perform their duties, as a matter of public interest, at the instance of any person genuinely concerned; and in suitable cases, subject always to discretion, the court should be able to award the remedy on the application of a public-spirited citizen who has no other interest than a regard for the due observance of the law.”

The Manus Provincial Government may not be a “public-spirited citizen” but it represents such and has led evidence from such. I think it passes the test suggested by this passage.

Fifthly, as a corollary to the previous reason, I am satisfied that the present applicant satisfies the objective, practical test propounded by Lord Denning in that case, as quoted in SCR No 4 of 1980; Re petition of Somare [1981] PNGLR 265 at 295:

“So I come back to the question: have these self-employed and small shopkeepers, through their federation, a ‘sufficient interest’ to complain of this amnesty? Have they 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 in 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.”

Finally, I note that, in granting leave to the applicant, Konilio J was of the view that the applicant had a “sufficient interest”.

In reaching my decision on the issue of standing I do not wish to be thought that I am making some statement as to the powers of Provincial Governments. Rather, that I support the attitude of the Deputy Chief Justice who said (at 296): “... It is the people’s court and let them come by the hundreds if they have the right to come.” To this I would add: if a body such as the Manus Provincial Government commences and maintains proceedings on behalf of such a large number of persons then what better way to achieve accountability for executive action in this country? More so where many of this country’s citizens are preliterate (a term which I prefer to the word illiterate since it embodies the hope that the person will become literate).

3.       Availability of certiorari. The next argument of Mr Sitapai was that the remedy of certiorari was not applicable to the actions of a public authority and that the first respondent as the prescribed authority was not exercising judicial authority. In this day and age the availability of certiorari depends more upon the character of the decision than a categorisation of the decision-maker. The classic statement on the issue of when certiorari and prohibition will be available is that of Atkin LJ in R v Electricity Commissioners; Ex parte London Electricity Joint Committee [1924] 1 KB 171 at 205, that those remedies will be available “whenever any body or persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority” The distinction which has been frequently drawn is between ministerial acts and judicial acts. But a judicial act is not a term confined to the actions of courts: what is required is “the exercise of some right or duty to decide in order to provide scope for the writ of certiorari at common law”: see R v Woodhouse [1906] UKLawRpKQB 88; [1906] 2 KB 501 at 535, per Fletcher Moulton J.

Although the first respondent’s task as prescribed authority was part of a scheme whereby the Minister for Forests took certain steps under the Forestry (Private Dealings) Act (Ch No 217), I consider that the first respondent was under a duty to act judicially since his task as prescribed authority involved the “rights of subjects”, namely the land rights of customary landowners, and since he was the subject of a statutory duty to decide. In my view, he therefore satisfied the tests suggested by the two cases to which I have just referred. The fact that the first respondent’s certification of ownership as prescribed authority is subject to the assent of the Minister (see s 7(2) of the Act) does not alter the characterisation of his decision: see Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898 at 917, albeit a case of prohibition, cited in SA de Smith’s Judicial Review of Administration Action (4th ed, 1980) at 387. Indeed, the decision challenged in R v Electricity Commissioners was subject to confirmation by the Minister for Transport and approval by resolutions of both Houses of Parliament: [1924] 1 KB 171 at 208. That the first respondent had a duty to act judicially is supported by the wording of the Act: s 7(5) requires the prescribed authority to conduct investigations. The fact that the process is inquisitorial rather then adversarial is of no moment. Even if certorari were not available at common law, it is available via s 155 of the Constitution in appropriate circumstances.

The certificate of authority was dated 9 August 1989. The applicant resolved to commence proceedings on 24 November 1989 and the originating summons was filed on 7 December 1989. I do not think that the submission based upon delay has any merit.

On behalf of the first respondent it was submitted that his conduct and decision were not amenable to review since the enabling provision in the Act permitted the prescribed authority to “make such investigations as it thinks necessary”. For reasons which I shall presently indicate, I do not think that such words are sufficient to oust the jurisdiction of the court and thereby render a prescribed authority open to determine questions as important as the ownership of timber and customary landowners’ rights in such a cavalier fashion as the first respondent did in this case.

APPLICANT’S SUBMISSIONS

1.       “Body”. Mr Taylor submitted that, as s 7(1) of the Act permitted the Minister to “declare a body to be a Prescribed Authority”, the first respondent was without jurisdiction since the body denotes a corporate entity or a group of persons and not an individual. The word “body” is not defined in the Act and no reported decisions were available on this point. I do not see any warrant for adopting a restrictive interpretation of that word.

2.       Procedural deficiencies. The second of the particularised grounds sought to suggest that the words “shall make such investigations as it (that is, the prescribed authority) thinks necessary” in s 7(5) import a requirement of reasonable investigations. In submitting that the first respondent’s lack of investigations failed this test, reliance was placed upon the decisions in Reade v Smith (1959) 78 NZLR 996, where the Governor-General was empowered to make such regulations as he thought necessary pursuant to a statutory provision. That power was held to have been invalidly exercised where that opinion was not reasonably tenable. The applicant also relied upon Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997, where the Minister’s decision was held not to be unfettered and was thereby successfully challenged where it was shown that he took irrelevant considerations into account. Those two decisions are discussed by de Smith in Judicial Review of Administrative Action (4th ed, 1980), at 293-294. However, I have found most helpful the section commencing on 295 under the heading “where the competent authority is empowered to take such action or to impose such conditions as it thinks fit in relation to a matter directly impinging on individual interest”.

I consider this ground to be made out on the evidence, given the absence of investigations by the first respondent.

3.       No evidence. It was suggested by the applicant “that there was no evidence or other material to justify the decision”. The two bases upon which the first respondent sought to justify his decision were personal knowledge of ownership and the meeting at Nihon Island on 10 January 1989. There was no evidence led to support the former claim. Indeed, upon being invited during cross-examination to demonstrate the nature and extent of that personal knowledge, the first respondent was unable to do so. As I have earlier indicated, the meeting at Nihon Island on 10 January 1989 does not provide proper support for the first respondent’s decision as to ownership. The decision in Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 was cited under this heading. I think that this ground is not established: the meeting at Nihon Island provided some evidence, albeit slight.

4.       Denial of natural justice. The allegation under this heading was bias. At the risk of stating the obvious, it is not necessary to show bias: it is sufficient to establish a likelihood of bias. I am of the opinion that the first respondent’s support for the third respondent prior to his appointment as prescribed authority, his outgoing correspondence, his scant regard to the supporters of the Kali Bay Development Corporation Ltd, his appointment of the then current directors of the third respondent as owners in his certificate of authority, his lack of active investigations, his failure to attend or call meetings, his failure to consider letters sent to him and his failure to properly consider personal representations combine to establish a likelihood of bias. Accordingly, on this ground, I think the applicant has clearly made out its case. This conclusion is reinforced by the agreement (or dealings) being executed between the third respondent and its 14 directors, described as agents in the agreement but certified as owners by the first respondent in his certificate of authority, on the very same day as the certificate of authority, namely, 9 August 1989. Additional support derives from the first respondent’s letter to the Premier dated 30 November 1987 in which he dismissed the Kali Bay Development Corporation Ltd as the product of a “minority group” and the first respondent’s failure to heed the warning provided by the very Minister who appointed him, which warning was provided by that Minister’s letter dated 3 August 1989 to the first respondent’s lawyers.

I think the test of whether there is a likelihood of bias is satisfied, on the evidence, from but one document, namely the first respondent’s letter on Manus Provincial Government letterhead dated 18 August 1987 in which he expressed strong support for the third respondent and falsely claimed to be speaking on behalf of the Manus Provincial Government. It may be that detailed and deligent investigations upon appointment as a prescribed authority could overcome the effect of that letter some 20 months prior to his appointment as prescribed authority. However, given the evidence of the first respondent’s lack of investigations, I consider that there is a likelihood of bias established by that letter.

The first respondent’s certificate of authority suggests, in the light of all the evidence, that he had a preconceived opinion as prescribed authority which no time or circumstance would alter. The applicant referred to the judgment of Kapi DCJ in Iambakey Okuk v Fallscheer [1980] PNGLR 274 at 282, in support of the proposition that the principles of natural justice applied to the first respondent in the present context. I do not think it can be seriously submitted to the contrary as it has long been held that decisions involving the interference with property rights attract the rules of natural justice: Errington v Minister of Health [1935] 1 KB 249.

5.       Failure to take into account relevant considerations. This ground was, in my opinion, made out from the following aspects of the evidence:

(a)      Failure to take account of the competing interest of the Kali Bay Development Corporation Ltd as revealed by par 11 of the affidavit of the Premier, Stephen Pokawin, the answers to the fifteenth interrogatory, the three letters which became exhibit E3 via the affidavit of Kule’en Hamou and the letter of the first respondent to the Premier dated 30 November 1987;

(b)      Failure to consider the personal representations of such people as Gideon Kumbou and Michael Bosman;

(c)      Evidence as to the requirements of Manus customs, notably the need for a consensus decision at sub-clan level in respect of usufruct rights;

(d)      Failure to ascertain or properly consider land disputes which are still pending at the relevant time;

(e)      Failure to consider disputes not only as to ownership but also as to whether land was within or without the LFA and disputes as to leadership;

(f)      Failure to heed the warning provided by the letter of the Minister to the first respondent’s lawyers dated 3 August 1989.

6.       That the decision was so unreasonable that no reasonable decision-maker could ever have come to it. In the light of my consideration of the evidence and my views expressed above on the preceding grounds, it is sufficient to indicate that I consider this ground to have been established.

PRIVATIVE CLAUSE

Subsequent to the hearing, I observed the provisions of s 7(4) of the Act:

“(4)    The State or prescribed authority is not liable in civil proceedings by reason of—

(a)      any statement in a certificate given by a prescribed authority under this section; or

(b)      the manner in which the information on the basis of which a certificate has been given was obtained.”

As neither lawyer raised this point, I invited them to lodge written submissions.

Mr Sitapai, on behalf of the first and third respondents, submitted that the words “civil proceedings” should be given their ordinary and natural meaning. He relied upon the decision of the Supreme Court in Van Der Kreek v Van Der Kreek [1979] PNGLR 185 to the effect that those words were neither technical nor governed by legal art but were broad enough to encompass an order for cash settlement in divorce proceedings.

Further, it was submitted that the Supreme Court decision in SCR No 3 of 1989; Re Forestry (Private Dealings) Act [1990] PNGLR 222, ruled that the State and the prescribed authority are protected from civil proceedings. Having read that decision I note that this comment was dicta and that it did not make any particular mention of proceedings for judicial review: it merely re-stated the statutory provisions and observed that, although the State and the prescribed authority could not be sued, an agent could be sued.

On the other hand, Mr Taylor submitted that, on a plain reading, s 7(4) excluded private law remedies but not public actions where no liability is sought to be imposed upon the State or the prescribed authority. It was submitted that the Act prevented the first respondent and the State (here, the second respondent) from being sued as defendants but not to being a respondent to a notice of motion by way of an application for judicial review where the focus of attention is not so much on the liability of a party as to the correctness, in law, of a decision made by that party.

This issue may be quickly disposed of. I accept Mr Taylor’s submission that the words of s 7(4) of the Act cannot be allowed to triumph over the provisions of s 155 of the Constitution whereby the National Court is granted an inherent power of judicial review whenever “necessary to do justice in the circumstances of a particular case”. Such a conclusion is not without earlier judicial support: see Premdas v Independent State of Papua New Guinea [1979] PNGLR 329; Reva Mase v Independent State of Papua New Guinea (Narokobi AJ, 1 October 1980, Judgment No N260, unreported).

The Constitution of this country recognises that there are three elements of Government: a representative legislature, an accountable executive and an independent judiciary. Any failure to give full effect to the provisions of s 155 of the Constitution would remove that accountability of the executive arm of Government.

Even if there were not such constitutional foundation for my conclusion, I would be disposed to require a much clearer statutory wording before sanctioning a removal of judicial review by what is known as an ouster clause or privative clause: see de Smith, Judicial Review of Administrative Action (4th ed, 1980), at 364 et seq; D G Benjafield & H Whitmore, Principles of Administrative Law (4th ed, 1971), at 246 et seq; S D Hotop, Principles of Australian Administrative Law (6th ed, 1985), at 321 et seq; and M Aronson & N Franklin, Review of Administrative Action (1987), at 671 et seq.

RELIEF AGAINST SECOND RESPONDENT

The applicant sought, in its third prayer for relief, to have stayed the assent of the Minister given pursuant to s 6(2) of the Act. Three affidavits of service (one of Mr Taylor sworn 12 March 1990 and two of Russell Ikosi both sworn 23 March 1990) disclosed that the Secretary for the Department of Justice had been served and notified of these proceedings. Be that as it may, it does not satisfy me that the Minister for Forests was aware that his assent would be challenged in these proceedings.

From his letter dated 3 August 1989, it is obvious that the Minister was aware of the potential problems in the present case. He even went so far as to suggest that certain steps be taken. Accordingly, the Minister has shown himself to be responsive to the concerns of the landowners within the Manus West Coast LFA.

I do not think it fair to stay his decision to assent to (the agreement or dealings), given pursuant to s 6(2) of the Act, without affording him an opportunity to be heard in relation to the order sought by the applicant.

In the circumstances of this litigation I would therefore regard the issues between the applicant and the first and third respondents as being finalised by this judgment. It may be that a non-litigious solution will be found as between the applicant and the second respondent as a result of this judgment. I propose to grant leave to the applicant to have the matter re-listed for the purpose of hearing argument as to the order sought against the second respondent. However, if a further hearing is to be sought on this issue then I would require that the applicant properly serve the Minister or his Secretary with the notice of motion and statement in support, a copy of this judgment and an appropriate covering letter. Any such date may be obtained by consultation with my Associate. I would hope that any argument on this issue could be heard during the next Manus circuit in early November.

COSTS

The second respondent has not been an active participant thus far. As between the applicant and the third respondent, I can see no reason why costs should not follow the event. It is obvious that s 7(4) of the Forestry (Private Dealings) Act (Ch No 217) was designed to avoid a prescribed authority becoming liable in civil proceedings. A costs order would be contrary to the intention of that provision. Accordingly, in the exercise of my discretion as to costs, I would exclude the first respondent from any costs order.

ORDERS

I would therefore make orders in accordance with par 1 and par 2 of the notice of motion filed 5 March 1990 (which paragraphs appear at 397 herein) and I would order that the third respondent pay the applicant’s costs of the proceedings to date, as agreed or as taxed. I grant to the applicant liberty to apply for a hearing date in the event that it desires to pursue an order against the second respondent.

[His Honour then considered matters relating to publication of the decision herein in a manner not calling for report.]

Application allowed

Lawyer for the plaintiff. Islands Regional Secretariat.

Lawyers for the first and third respondents: Karingu Sitapai Kemaken & Associates.