N569

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OLASCO NIUGINI PTY LTD AND OFFSHORE LIQUEFACTION 
& SHIPPING CO LIMITED

V

JOHN KAPUTIN AND WILLIAM SEARSON, FRANCIS ROWBOTTOM, 
CHARLES YATES, FRED HAYNES, GREGORY PETROLEUM ADVISORY 
BOARD AND KELVIN ENERGY LIMITED

Waigani
McDermott AJ
12 December 1986

PRACTICE AND PROCEDURE - Leave to apply for judicial review - Ex parte application - Leave to intervene on not precluded - When appropriate - National Court Rules, O 16, rr 3, 4, 9.

ADMINISTRATIVE LAW - Judicial review of administrative acts - Practice and procedure on - Ex parte application for leave to apply - Leave to intervene on not precluded - Circumstances in which appropriate - National Court Rules, O 16, rr 3, 4, 9.

EVIDENCE - Non-publication order - Interests of justice - Genuine concern - Potential damage in publication - Short duration of order - Service of order - Notification to media by Registry in first instance.

JUDGMENTS AND ORDERS - Non-publication order - Interests of justice - Genuine concern - Potential damage in publication - Short duration of order - Service of order - Notification to media by Registry in first instance.

NEWSPAPERS AND PRINTING - Non-publication order - Service of - Duty on party obtaining - Registry to notify in first instance.

Held

(1) On an ex parte application for leave to apply for judicial review made pursuant to the National Court Rules, O 16, r 3, leave may be granted to interested parties to intervene and be heard on the application to argue, inter alia, that the applicant for leave does not have sufficient interest, that the application will cause substantial hardship or prejudice or that the applicant for leave lacks good faith.

Held Further

(2) An order prohibiting publication of the application and the proceedings generally should be made in the interests of justice and taking into account the genuine concern of the parties, the potential damage publication might cause, and the urgency of the matter being such that the prohibition order would be of short duration.

(3) Where an order for non-publication is made, the Registry is obliged to notify the media that a prohibition order has been made and the party seeking and obtaining the order must serve the media with a copy of it.

Cases Cited

Cudgen Rutile (No 2) Pty Ltd v Chalk (1974) 49 ALJR 22; 4 ALR 438.
R v Barnes; Ex parte Vernon (1910) 102 LT 860.
R v Inland Revenue Commissioners; Ex parte National Federation of Self Employed and Small Business Ltd [1982] AC 617; [1981] 2 WLR 722.
R v Kensington Commissioners; Ex parte Polignac [1917] 1 KB 486.

Ex Parte Summons

This was an application for leave to apply for judicial review brought pursuant to the National Court Rules, s 16, r 3.

Counsel

M Hirst, for the plaintiff.
J Reeve, for the first and second defendants.
M Wilson, (with him T Reiner) for the third defendant.

12 December 1986

MCDERMOTT AJ: Pursuant to the National Court Rules, O 16, r 3, the plaintiffs seek leave to apply for judicial review — in this case a declaration is sought as to their rights in relation to a right of first refusal to a petroleum prospecting licence. In conjunction with this application, an injunction is sought to restrain the Minister, the Petroleum Advisory Board and Kelvin Energy Ltd from acting upon a decision or purported decision of the Minister to grant a petroleum prospecting licence to Kelvin Energy Ltd.

In compliance with the Rules, the judicial review application:

(a) must be made by originating summons ex parte to the Court.

(b) prior notice must be given to the Secretary for Justice accompanied by the statement and affidavit in support; and

(c) the applicant must have a sufficient interest in the matter to which the application relates. In this instance because of the injunction, the lawyers for Kelvin Energy Ltd were served. Thus at the preliminary hearing, all parties were represented and the defendants sought to intervene.

I do not consider the clause "must be made by originating summons ex parte to the court" to preclude intervention by other parties at this early stage. The necessity for leave was well explained in R v Inland Revenue Commissioners; Ex parte National Federation of Self Employed and Small Businesses Ltd [1981] 2 WLR 722, where Lord Diplock said at 739:

"Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived."

And as Lord Scarman said, at 749:

"The curb represented by the need for an applicant to show, when he seeks leave to apply, that he has such a case is an essential protection against abuse of legal process. It enables the court to prevent abuse by busybodies, cranks, and other mischief-makers."

It appears to me implicit in this reasoning that a court may hear argument at the preliminary stage, although not expressly mentioned in the rules relating to the grant of leave to apply (as distinct from the hearing of the application see O 16, r 9(1)). Indeed, this argument also relates to O 16, r 3(5) and 4(1). Why cannot another party say at the preliminary stage that an applicant does not have sufficient interest or that the application will cause substantial hardship or prejudice?

Mr Reeve, submits under the abuse of process argument a number of reasons why the State should be heard:

(1) As a matter of law, no reliance could be placed upon an offer by the Minister of a "right of first refusal to obtain a petroleum prospecting licence".

See the almost identical situation which arose in Cudgen Rutile (No 2) Pty Ltd v Chalk (1974) 4 ALR 438. In that case the Queensland Minister for Mines purported to entitle the company "to apply for and have granted to him in priority to any other person or company a mining lease...". When not granted the lease, the company sought relief including specific performance of a contract which was alleged to exist to grant it a lease. The respondent demurred. The Privy Council said at 444:

"It follows as a logical consequence that when a statute regulating the disposal of Crown lands, or of an interest in them, prescribes a mode of exercise of the statutory power, that mode must be followed and observed, and if it contemplates the making of decisions, or the use of discretions, at particular stages of the statutory process, those decisions must be made, and discretions used, at the stages laid down. From this, in turn, it must follow that the freedom of the Minister or Officer of the Crown responsible for implementing the statute to make his decisions, or use his discretions, cannot validly be fettered by anticipatory action; and if the Minister or Officer purports to do this, by contractually fettering himself in advance, his action in doing so exceeds his statutory powers."

That appears, on the limited facts before me to be a substantial argument.

(2) The court has only been furnished with selected documents which do not disclose the complete story. This involves the uberrima fides of the applicants and supression of material facts in the affidavit may alone be grounds to refuse the application, see R v Kensington Commissioners; Ex parte Polignac [1917] 1 KB 486 and R v Barnes; Ex parte Vernon (1910) 102 LT 860.

(3) The resolution of the plaintiffs claim will involve time, and time in this matter is of the essence, thus the importance of the Court hearing the full argument as quickly as possible.

(4) The plaintiff delayed in bringing the application.

Kelvin Energy has also relied upon the delay factor. It became clear from the affidavit filed on its behalf that the Petroleum Advisory Board determined the issue of a licence on 31 October 1986 and on that day made its recommendation in favour of Kelvin Energy, to the Minister. He in turn notified the Company of "Information Concerning Grant of Petroleum Prospecting Licences" on 7 November. This offer, as it were, was taken up by the Company on 11 November and the lease was subsequently granted on 21 November. Whilst the applicant sets out in detail its dealings with the Minister and the Department no mention is made of the Boards recommendation or of the offer to Kelvin Energy and the subsequent grant of the lease to it. It is not satisfactorily explained by the plaintiff why no action was taken earlier apart from relying on the fact that the actual licence was dated 21 November, but in reality Kelvin Energy started operations for the prospect from 7 November. What happened after that day was the conclusion of formalities for the lease simultaneously with the gearing up for operations.

Order 16, r 4(1) speaks of undue delay in making an application for judicial review and leave can be refused on this ground if it "would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration". I am told that the hardship and prejudice is the loss to Kelvin Energy which would result in this application being prolonged. It would be serious — a lapse of Stock Market confidence in its operations, interference with the financing of the project and marketing negotiations. I can appreciate that it "will suffer substantial irreparable damages including damages to its reputation and its ability to continue as an ongoing business which cannot be compensated for by way of damages".

(5) A combination of these reasons results in a further one; the applicant does not have sufficient standing.

Whilst it is not necessary for me to determine the issues now, I am satisfied for the reasons advanced that leave should be granted to each defendant to intervene and to be heard in the plaintiffs application for leave to apply for judicial review. Because of the urgency involved I see no reason why the application for leave and the hearing of the application for judicial review could not proceed simultaneously as is often the case in appeals.

All parties in this matter have requested an order prohibition publication of this application and of the proceedings generally. The reasons advanced are similar to those which relate to hardship and prejudice. Specifically, in this instance I was referred to the damage which could occur to Kelvin Energy if word reached the Alberta Stock Exchange of the problem which it faced because of this application, and generally the problems which it would face in its negotiations with financiers and potential buyers. In making the order, in the interests of justice, I was cognisant of the relevant interest of the media in a story such as this, but I considered:

(1) that the concern of the parties was genuine and the potential damage great;

(2) the urgency of the matter would mean that any prohibition would be of short duration; and

(3) the full story could be told at the completion of the proceedings.

Having made such an order I was later embarrassed to learn that in particular the "Post-Courier" which learnt of the proceedings and printed a small item about a "hush hush court case", had not been served with a copy of the order or notified of its existence. For the future, I state that it is incumbent upon those who seek such an order, to serve the media with a copy of it, and in the first instance, it is the obligation of the Registry to notify the media that a prohibition order has been made.

Orders accordingly

__________________

Lawyers for plaintiff: Gadens.
Lawyer for first and second defendants: The State Solicitor.
Lawyers for third defendant: Warner Shand Donigi Reiner.