Papua New Guinea Law Reports - 1988-89
[1988-89] PNGLR 346
SC371
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCR NO 3 OF 1989; REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(B); KITOGARA HOLDINGS PTY LTD
V
NATIONAL CAPITAL DISTRICT INTERIM COMMISSION AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND KALA SWOKIN, MINISTER FOR LANDS AND KARIPE PITZZ, SECRETARY FOR LANDS AND CHAIRMAN, PAPUA NEW GUINEA TOWN PLANNING BOARD
Waigani
Kapi DCJ Woods Los JJ
27 April 1989
25 May 1989
1 September 1989
APPEAL - Right of appeal - From consent orders - No appeal where orders made by consent of the “parties” - “Parties” limited to parties to proceedings - Right of appeal to any “person” - “Person” includes any person affected who might have been joined - Applicant for judicial review of consent orders to which not a party is person with right of appeal - Supreme Court Act (Ch No 37), ss 14(2), 17.
ADMINISTRATIVE LAW - Judicial review of judicial acts - Application for leave - Civil jurisdiction - Application for review of consent orders - Applicant not “party” to consent orders - Applicant a “person “ with right of appeal as party aggrieved by consent orders - Need to justify failure to appeal within time - Application refused - Supreme Court Act (Ch No 37), ss 14(2), 17 - Constitution, s 155(2)(b).
PRACTICE AND PROCEDURE - Supreme Court - Application for judicial review - Application for review of consent orders - Applicant not “party” to consent orders - Applicant a “person” with right of appeal as party aggrieved by consent orders - Need to justify failure to appeal within time - Application refused - Supreme Court Act (Ch No 37), ss 14(2), 17 - Constitution, s 155(2)(b).
A company was granted a State Land Lease by the Land Board. Another applicant for the State Lease applied for judicial review without making the company a party to the review proceedings. On the review proceedings the National Court made orders by consent of the parties referring the matter back to the Land Board for reconsideration. The company was aware of the proceedings for judicial review and of the consent orders made but did not take steps to appeal.
The Supreme Court Act (Ch No 37), s 14(2), provides:
“An appeal does not lie from an order of the National Court made by consent of the parties.”
Section 17 provides that “where a person desires to appeal ... from the Supreme Court, he shall give notice of appeal ... within 40 days after the judgment in question ...”
On an application by the company for leave to apply for judicial review of the consent orders,
Held
(1)      (Los J assuming) Section 14(2) of the Supreme Court Act operates so as to prevent only “parties” to the proceedings in which the consent order is obtained from appealing.
(2)      (Los J not deciding) Section 17 of the Supreme Court Act operates so as to provide a right of appeal to any “person” whose interests are affected by or who is aggrieved by the order of the court and who might have been joined as a party to the proceedings.
(3)      On an application for leave to apply for judicial review under s 155(2)(b) of the Constitution, the onus is on the applicant to show that there are cogent or convincing reasons and exceptional circumstances where some substantial injustice is manifest or the case is of special gravity.
Where a right of appeal as opposed to review exists, the applicant must justify why such a right was not exercised in time.
Avia Aihi v The State [1981] PNGLR 81 and The Independent State of Papua New Guinea v Colbert [1988] PNGLR 138, followed.
Where there is no right of appeal or it is prohibited by law, the applicant does not have to address this issue.
SC Rev No 5 of 1988; Applications of Kasap and Yama [1988-89] PNGLR 197, followed.
(4)      (Los J dissenting) In the circumstances, the company as a “person” affected by the consent orders had a right of appeal therefrom and was required to justify why that right had not been exercised within time, which it had not done.
(5)      (Los J dissenting) In the circumstances, the company had not shown cogent or convincing reasons and exceptional circumstances where some substantial justice was manifest or that the case was of special gravity and the application should be refused.
Cases Cited
Avia Aihi v The State [1981] PNGLR 81.
Avia Aihi v The State (No 2) [1982] PNGLR 44.
Awoda v The State [1984] PNGLR 165.
Browne v Dunn (1893) 6 R 67, HL.
Cuthbertson v Hobart Corporation (1921) 30 CLR 16.
Danny Sunu v The State [1984] PNGLR 305.
Papua New Guinea, The Independent State of v Colbert [1988] PNGLR 138.
Papua New Guinea, The Independent State of v Lohia Sisia [1987] PNGLR 102.
SC Rev No 5 of 1988; Applications of Kasap and Yama [1988-89] PNGLR 197.
State, The v Ogadi Minjipa [1977] PNGLR 293.
Ume More v University of Papua New Guinea [1985] PNGLR 401.
Application for Judicial Review
This was the hearing of an application for leave to apply for judicial review pursuant to s 155(2)(b) of the Constitution of consent orders of the National Court made in its civil jurisdiction and brought pursuant to O 16 of the National Court Rules.
Counsel
J Griffin QC with H D Hauka, for the applicant.
K Naru, for the first respondent.
J Gelu, for the second, third, fourth and fifth respondents.
Cur adv vult
1 September 1989
KAPI DCJ: Litigation has arisen over the piece of land, Portion 2008, which is commonly known as the Koki reclaimed land. The Land Board considered the application by the applicant Kitogara Holdings Pty Ltd and recommended to the Minister for Lands that a Business Commercial Lease be granted to the applicant. The Minister for Lands approved the grant in accordance with the provisions of the Land Act (Ch No 185).
The National Capital District Interim Commission is alleged to have applied for the same piece of land but was not successful. The Commission made an application by way of judicial review to the National Court under O 16 of the National Court Rules asking for orders to restrain authorities from registering Kitogara Holdings Pty Ltd as the owner. In the proceedings before the National Court, the Minister for Lands, the Secretary of the Department and Chairman of the Land Board were made parties. The matter was not tried, as the parties referred to above, consented to the following orders:
1.       It is hereby declared that any previous alienation of or dealing in the area of land described as Portion 2008 and known as the Koki reclaimed land is void and of no effect.
2.       The first defendant be and is hereby restrained from alienating or in any way dealing with the said land until:
(a)      the land is zoned in accordance with the provisions of the Town Planning Act; and
(b)      the entire area of the said land is gazetted under s 75 of the Land Act.
3.       Upon compliance with the provisions listed in par 2 hereof the matter shall be referred back to the Land Board for consideration of all applications lodged for the said land and to be further dealt with according to the law.
This order was made on 5 October 1987. The present applicant was not a party to those proceedings and took no part in the consent orders. The applicant has applied under s 155(2)(b) of the Constitution for the review of the consent orders.
The principles governing s 155(2)(b) are now well settled: Avia Aihi v The State [1981] PNGLR 81, Danny Sunu v The State [1984] PNGLR 305, The Independent State of Papua New Guinea v Colbert [1988] PNGLR 138, SC Rev No 5 of 1988: Applications of Kasap and Yama [1988-89] PNGLR 197.
The onus is on the applicant to show that there are cogent and convincing reasons and exceptional circumstances where some substantial injustice is manifest or the case is of special gravity. Where a right of appeal as opposed to a review exists, the applicant must justify why such a right was not exercised and allowed to expire. This is a relevant consideration: Avia Aihi v The State; The Independent State of Papua New Guinea v Colbert. Where there is no such right of appeal or it is prohibited by law, the applicant does not have to address this issue: SC Rev No 5 of 1988; Applications of Kasap and Yama.
In this case, counsel for the appellant has submitted that as this judgment was a consent order, parties do not have a right of appeal. This is prohibited by s 14(2) of the Supreme Court Act (Ch No 37). He further contended that the applicant who was not a party is prevented by the same provision from appealing. This submission was conceded by counsel for the respondents. Concession of counsel is not binding on the court. The court has to make up its own mind on the matter. I indicated to counsel for the appellant that authorities should be relied upon to support his proposition. This is a critical issue on this application. If s 14(2) of the Supreme Court Act does prevent the applicant from appealing, he has no obligation to justify any reasons for not appealing. If this view is not correct and the correct view is that the appellant could have appealed, then he has an obligation to justify the failure for not appealing.
DID THE APPELLANT HAVE A RIGHT TO APPEAL?
The relevant provisions to be considered are s 14(2) and s 17 of the Supreme Court Act (Ch No 37):
“14(2) An appeal does not lie from an order of the National Court made by consent of the parties.” (My emphasis)
The legislature here used the word “parties”. This has to be interpreted narrowly to refer only to the parties in an action. It cannot include a person who is not a party to the proceedings. To interpret parties to include others who could have been made parties, would make s 14(2) an unfair and oppressive provision. Any two parties to a dispute could, by consent order, deprive other persons from appealing against the decision. In this case, s 14(2) only deprives the National Capital District Interim Commission, the Independent State of Papua New Guinea, Kala Swokim, Minister for Lands, Karipe Pitzz, Secretary for Lands and the Chairman of Papua New Guinea Town Planning Board. It does not apply to the applicant who was not a party to the consent order.
It cannot be doubted in this case that the applicant who had an equitable interest in the subject land had a direct interest in the proceedings. Even though the applicant was not a party, he had a right to appeal against the order which affected his interests: see Cuthbertson v Hobart Corporation (1921) 30 CLR 16 at 23-25.
The applicant would come within the meaning of the word “person” under s 17 of the Supreme Court Act (Ch No 37). The word “person” is used as opposed to “parties” to an action. The word “person” includes all persons whose interests are affected and who might have been joined as parties to the proceedings.
Section 17 of the Supreme Court Act provides:
“Where a person desires to appeal to or obtain leave to appeal from the Supreme Court, he shall give notice of appeal ... within 40 days after the date of the judgment in question ...”
I have reached the conclusion that the applicant had a right to appeal against the order in question. It follows from this that the applicant bears the onus of showing why an appeal was not lodged within time: see Avia Aihi v The State and The Independent State of Papua New Guinea v Colbert.
The appellant has failed to justify the failure to lodge an appeal. Mr Griffin, the manager of the appellant company, points to no explanation. At the relevant time, the applicant was represented by a firm of lawyers. They have not given any explanation for the failure to appeal.
This does not in any way assist the applicant in invoking the power of this Court under s 155(2)(b) of the Constitution.
As to the grounds of review, in essence, the applicant complains that he was not joined as a party; there was a breach of natural justice. Ordinarily, this would have been a sufficient ground to invoke s 155(2)(b) review. However, I agree with Woods J that Mr Griffin, the manager of the applicant company, had sufficient notice of the hearing.
The respondents attempted to serve the applicant, although unsuccessfully. There is evidence from cross-examination of Mr Griffin that he was made aware of the proceedings. This is supported by his own affidavit, par 24:
“On or about 29 June 1987, I learned that the National Capital District Interim Commission was initiating proceedings against the Minister for Lands to prevent the State lease being issued to the applicant.”
He continued, at par 25:
“I was informed that an application for judicial review was to take place from 7 to 9 October 1987. After being told of the date of the hearing, I advised the applicant’s lawyers (Warner, Shand, Wilson, Donigi, Reiner) at that time to represent the company and to enquire about these proceedings.”
It is clear from this evidence that the applicant’s lawyers or its representative made no attempt to make any representation to the court to be joined as a party. They gave no explanation for their failure to do so.
Furthermore, the application under s 155(2)(b) was not made promptly. It took a period of six months before the application was made in the proper manner.
I also agree that the applicant still has the opportunity to apply for this piece of land on the same footing as any other applicant.
Having regard to all these matters, I find that the applicant failed to show any reason why the court should review the order.
WOODS J: The applicant, Kitogara Holdings, is seeking judicial review by way of s 155(2)(b) of the Constitution of certain orders made by the National Court. The subject matter is a piece of land, Portion 2008, commonly known as the Koki reclaimed land. The Land Board had considered the application by Kitogara Holdings Pty Ltd and recommended to the Minister for Lands that a Business Commercial Lease be granted to the applicant. The Minister for Lands then approved the grant in accordance with the provisions of the Land Act (Ch No 185).
The National Capital District Interim Commission apparently also applied for the same piece of land. The Commission made an application by way of judicial review to the National Court asking for orders to restrain authorities from registering Kitogara Holdings Pty Ltd as the owner. Before the National Court certain parties were joined; however, the applicant here, Kitogara Holdings, was not joined before the National Court. In due course consent orders were made by the National Court which, in effect, sent the matter back to the Land Board for consideration of all applications lodged for the said land. The applicant herein was not a party to the consent order before the National Court.
This raises a preliminary point on whether the applicant could have or should have appealed from the consent order. To say that the applicant could not appeal because the order in the National Court was made by consent puts a very restrictive interpretation on s 14(2) of the Supreme Court Act (Ch No 37). Section 14(2) quite clearly does not allow an appeal to the Supreme Court by a party who was a party to the consent order. But appeals to the Supreme Court are not restricted to parties, namely persons who were before the lower court. The Supreme Court Act specifically uses the different words “person” and “party”. Section 14(2) of the Supreme Court Act uses the word “party”. Section 17 of the Act uses the word “person”. A person who wishes to appeal as a person aggrieved by any order of the National Court need not have been a party. The Supreme Court Act clearly allows any person aggrieved by any decision or order of the National Court to appeal to the Supreme Court and s 14(2) specifically prohibits those persons who were parties to a consent order. That can be the only logical and reasonable interpretation of s 14(2).
Therefore I find that the criteria governing this review are those criteria established in the well-known cases of Avia Aihi v The State [1981] PNGLR 81; Avia Aihi v The State (No 2) [1982] PNGLR 44; Danny Sunu v The State [1984] PNGLR 305; The Independent State of Papua New Guinea v Colbert [1988] PNGLR 138 and SC Rev No 5 of 1988; Re Applications of Kasap and Yama [1988-89] PNGLR 197 and therefore the applicant before this Court must show a number of matters before review should be granted. And briefly these matters are:
1.       that it is in the interests of justice;
2.       that there are cogent and convincing reasons or exceptional circumstances; and
3.       that there are clear legal grounds meriting a review of the decision.
The last principle does include the reasons for failure to appeal in time. The Supreme Court has clearly stated in the earlier cases that in matters under s 155 it is in the public interest that unreasonable delays should be a bar to review.
Therefore what are the merits of the applicant’s application? The applicant has submitted that he had an equitable interest arising out of the approval of the Minister to a grant of a lease. One must remember here that it is only an equitable interest and not the full issued lease. However, having an equitable interest he would have had an interest in the proceedings that were taken before the National Court. Whilst the applicant was not joined as a party, he had due notice of the proceedings in the National Court. Whilst it is a general principle that all necessary and proper parties should be before the court in relevant proceedings, if a party with due notice takes no steps to participate then there should be no onus on the court or any other body to bring him in. Our system is not an inquisitorial system whereby the duty is on the court to go and find everyone involved, concerned or who should be concerned. This is a democratic system where the court is set up to assist the people. If people do not act themselves when they have due notice and opportunity, then it is not the duty of the court to make them act. The applicant took no steps to join or to object to the proceedings and he thereby allowed the proceedings to terminate in the consent order. He has given no satisfactory explanation as to why he failed to take the steps to be joined. I therefore see no breach of natural justice here.
The applicant did not seek to appeal as a person aggrieved by the consent orders. Instead he waited some months before he made this application for review before the Supreme Court.
Having found no satisfactory explanation for the delay or for the failure to appeal, does this Court still have a discretion to consider whether, because the applicant has been left completely out in the cold and lost any rights he might have had, the court should therefore in its discretion still allow review? In this case, the applicant has lost an equitable right but the subject in question is merely going back to the Land Board for further consideration and the subject land has not been given to any other person. The applicant in these proceedings therefore is still in the running. He still has a right to apply and be heard for the subject land. In the circumstances therefore I do not feel it is necessary for the court to go further in its discretion. I find that the applicant has shown no good reason why this Court should grant review under s 155 of the Constitution.
LOS J: The applicant seeks to invoke the inherent powers of the Supreme Court under s 155(2)(b) of the Constitution to review an order made by the National Court on 5 October 1987:
By consent, the Court declared the previous alienation of or dealing in the area of land described as Portion 2008, and known as the Koki reclaimed land as void and of no effect and restrained the Minister for Lands and Physical Planning from alienating or in any way dealing with the said land until the land is zoned in accordance with the provisions of the Town Planning Act, and the entire area of the said land is gazetted under s 75 of the Land Act and upon compliance with the provisions of the above orders, the matter be referred back to the Land Board for consideration of all applications lodged for the said land and to be further dealt with according to the law. No order for costs.
The applicant must satisfy the court with respect to a number of requirements before any review can be granted. The landmark case on this point is Avia Aihi v The State (No 2) [1982] PNGLR 44. The applicant applied for a lease over a part of the reclaimed land near Koki Market and was granted a lease for commercial purposes. I know the legality of the issue of the lease is subject to dispute. I do not address that issue at this point in time. I raise this as a matter of fact. As a result of the orders by the National Court, the applicant stopped the operations of his business on the land and the consequence of the stoppage is obvious. The applicant was not a party to the consent order which affected it more, and more immediately, than the parties to the consent order. In this respect I make a passing reference to the applicant’s contention affecting the National Capital District Interim Commission (the Commission) on two aspects. The applicant contends that the Commission as an ordinary litigant cannot obtain an order declaring public rights. I think that, in view of the Commission’s important position in the National Capital District, this contention needs proper examination. Some discussion on this point can be found in Ume More v University of Papua New Guinea [1985] PNGLR 401, especially in the judgment by Pratt J. The second contention is that the Commission had not filed a valid application for a State lease. It is claimed that the Commission’s application was not under seal and was not accompanied by the prescribed fee. This is a matter of substantive argument that should be looked into. It is clear to me, however, that the applicant had gone beyond all that the other parties had done; a lease had been issued to it. I consider therefore that the applicant has a sufficient interest in the matter.
The respondents have vigorously attacked the delay on the part of the applicant in seeking this review. Here, I want to distinguish between two categories of review. I call the first category, the Avia Aihi category. In this category, review is sought because the appeal period has expired: Avia Aihi v The State [1981] PNGLR 81. In the other category, which I describe as the election petition category, the only way to get a hearing by the Supreme Court is by invocation of s 155(2)(b) of the Constitution because there is no right of appeal from the decision of the National Court (see s 220 of the Organic Law on National Elections). The applicant does not fall into one of these categories automatically. The order by the National Court subject to this review was a consent order. By s 14(2) of the Supreme Court Act (Ch No 37):
“An appeal does not lie from an order of the National Court made by consent of the parties.”
Whether the applicant could avoid s 14(2), on the basis that it (the applicant) was not a party to the consent order, was not properly argued before the court because counsel for the applicant contended that the wording of s 14 of the Supreme Court Act was so clear that there was no room to manoeuvre. He also made reference to SC Rev No 5 of 1988; Applications of Kasap and Yama. Counsel for the respondents were either silent or had conceded on this point because it was in their clients’ favour. I think SC Rev No 5 of 1988; Applications of Kasap and Yama has no application here because, whether or not a person was not participating in the petition, depended on the interpretation of the word “candidate”. I consider that the point has not been argued well enough for me to make a determination here. For the purpose of this review, I will assume that the applicant could not appeal because s 14 of the Supreme Court Act does not allow it. The applicant therefore need not show why it did not appeal. Its position is akin to that of the election petition category.
Since drafting my judgment, I have read the draft judgment of my brother Mr Justice Woods on the interpretation of s 14 of the Supreme Court Act. I am impressed by his Honour’s view. But I think that neither party should be awarded any benefit of that interpretation because at the crucial time there had been no interpretation of s 14 by the Supreme Court. All of the parties had accepted s 14 at its face value and acted accordingly.
The next question is: Why did the applicant not appear before the National Court to protect its interests? It is obvious to me that no proper service of the notice of motion and the accompanying documents (if any) was made upon the applicant. At any rate, the parties named in the documents did not include the applicant. I consider there was either indifference or no real interest in informing the applicant of any proposed hearing.
The applicant made an attempt to find out what happened when he heard about the hearing. By then, according to him, the matter was “compromised” between the two parties. It is true, six months had elapsed from the date of the National Court order to the institution of the action to challenge the National Court order. I consider it is not as though the applicant had not done anything at all. It instituted communication with the Minister for Lands, and with lawyers. It also proceeded to change its lawyers. The files on the subject indicate numerous appearances seeking and getting different orders and directions from the court. I consider that the case, The Independent State of Papua New Guinea v Lohia Sisia [1987] PNGLR 102 cited by counsel for the third, fourth and fifth respondents, does not compare well with the applicant’s situation. In that case, the applicant, in the main, was attacking the validity of the purchase of Hagara land some 23 years before the review.
There is a further and stronger consideration in favour of the applicant. After having been issued with a lease over the land, it was fair for him to expect that the Minister could not suddenly make an about-turn and deny him any lease. Going to court immediately would not be necessary as he would have expected the Minister to recognise his right. I consider therefore that six months delay is not excessive in the circumstance of this case.
The respondents have advanced two important reasons for supporting the consent order. First, the land had not been zoned according to the provisions of the Town Planning Act (Ch No 204). Secondly, the entire area of land had not been declared under s 25 of the Land Act (Ch No 185).
As it was a consent order, full facts were not presented before the court, nor were any full legal arguments presented before the court. I do not wish to pre-empt anything here because of an order that I wish to make at the end. Mr Griffin, counsel for the applicant, made a point that I wish to raise here. Section 29(3) of the Land Act says that no lease may be issued “in contravention of: [a] law relating to town planning”. But neither the Town Planning Act nor the Land Act require land to be zoned before a State lease is issued. It could hardly be argued therefore that the issuing of a lease before the land had been zoned was in contravention of a law relating to town planning. The lease issued was for a business purpose. The Town Planning Act does allow for zoning of land for commercial purposes. At the time of issuing a lease to the applicant, the land was not zoned for any purpose that could be contravened.
In relation to the second issue, again because the orders sought were consent orders, full facts were not presented to the National Court. The affidavit of Ian Robert Sparks, a registered surveyor, shows that the land the subject of the dispute was included in the declaration gazetted on 2 February 1978. The lawyers for the respondents were asked in the Supreme Court whether they wanted to cross-examine the deponent of the affidavit but they declined to do so. If there had been a normal hearing of evidence on this aspect, by virtue of the rule in Browne v Dunn (1893) 6 R 67, HL, the respondents could not later dispute this evidence. There is no need to state the obvious but the rule in Browne v Dunn is repeatedly mentioned in courts in Papua New Guinea: see, for example, The State v Ogadi Minjipa [1977] PNGLR 293 and Awoda v The State [1984] PNGLR 165.
For the foregoing reasons I would grant leave to review the consent orders of 5 December 1987 and quash the said orders.
By majority leave to apply for judicial review refused
Lawyers for the appellant: Billy Oscar Emos & Co.
Lawyer for the first respondent: K Naru.
Lawyer for the second, third, fourth and fifth respondents: Pomat Paliau, Acting State Solicitor.