N587

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

NTN PTY LIMITED

V

THE BOARD OF THE POST & TELECOMMUNICATION CORPORATION
(FIRST DEFENDANT)

AND

POST & TELECOMMUNICATION CORPORATION
(SECOND DEFENDANT)

AND

MEDIA NIUGINI PTY LIMITED
(THIRD DEFENDANT)

Waigani
Wilson J
16 April 1987
22 April 1987
29 April 1987
6 May 1987

APPEAL - Judicial review - Application for - Discretion - Grounds for exercise of - Where application out of time - National Court Rules, O 16, rr 3, 4 - Constitution, s 60.

ADMINISTRATIVE LAW - Judicial review - Application for - Discretion - Grounds for exercise of - Where application out of time - National Court Rules, O 16, rr 3, 4 - Constitution, s 60.

ADMINISTRATIVE LAW - Judicial review - Denial of natural justice - Administrative proceedings - Need to have regard to Constitution, s 60.

Held:

(1) Leave to proceed by way of judicial review, pursuant to the National Court Rules, O 16, r 2, may be granted where the court is satisfied under O 16, r 3(5), that the applicant has sufficient interest or standing to bring the application.

Matters relevant to the exercise of that discretion include:

(a) Whether there is an arguable case: Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617.

(b) Where the application is made out of time, whether, under O 16, r 4, there has been undue delay in making the application and whether the granting of leave would be likely to cause substantial hardship to, or substantially prejudice the rights of any person, or would be detrimental to good administration.

In the interests of good administration an applicant who wishes to challenge a decision which has implications for another party or for public administration is under a heavy duty to act expeditiously and fairly.

(2) In considering whether there is an arguable case based on a denial of natural justice in administrative proceedings, regard should be had to s 60 of the Constitution, which directs attention to the development of a system of principles of natural justice and of administrative law.

(3) Leave should be refused in circumstances where leave to make the application for judicial review was in respect of a decision to grant broadcasting station licences under the Radiocommunications Act (Ch No 152), by a broadcasting licence holder who had no statutory rights to be heard in respect of the granting of new licences and who was making the application 11 months out of time.

Cases Cited

The following cases are cited in the judgment:

Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617; [1981] 2 WLR 722; [1981] 2 All ER 93.
R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299; [1972] 2 WLR 1262.

Summons

This was an application for leave to apply for judicial review made pursuant to the National Court Rules, O 16, r 4.

Counsel:

I Molloy and T Glenn, for the applicant.
J Steele, for the first and second respondents.
M Hirst, for the third respondent.
Cur adv vult

6 May 1987

WILSON J.: This is an application for leave to proceed by way of judicial review under O 16, r 2 of the National Court Rules.

The review application concerns a licence to broadcast television which was issued on 19 November 1985 to Media Niugini Pty Ltd.

ABBREVIATIONS

In this judgment I will refer to the plaintiff, NTN Pty Ltd, as "NTN"; the first and second defendants will be referred to as "PTC" unless it is necessary to refer separately to the first defendant which will be referred to as "the Board of PTC"; the third defendant will be referred to as "Media Niugini".

CHRONOLOGY OF PROCEEDINGS

1. The application before me on 16 April was an ex parte application with only the legal representatives of NTN in court.

2. On 22 April 1987 when the matter resumed for me to deliver judgment Mr Hirst, counsel for Media Niugini, successfully sought leave to appear to present submissions on behalf of his client regarding the element of delay in applying for relief which was a matter going to the exercise of my discretion as to whether leave should be granted to NTN. The application for leave was contested by Mr Glenn on behalf of NTN. After giving the matter consideration I gave a ruling in the following terms:

"I have before me an application by Media Niugini (MNG) for leave to appear and make representations in relation to an application for leave for judicial Review by NTN Pty Ltd (NTN). That application revolves around matters covered by O 16, r 4 which deals with the situation where the court’s discretion is being exercised where there is delay.

I take the view that this provision is in the Rules to give some protection to the rights of parties affected as in this case MNG clearly will be. During the initial hearing I indicated my concern that I was unable to come to any view on what I termed the ‘second leg’ of O 16, r 4, because I had nothing before me on which to base my decision as to the discretion given.

The application now before me would enable such information to be to hand. I have no doubt that MNG has sufficient interest to seek leave and I consider it would be fair to allow such a course.

I have considered R v Stratford-on-Avon District Council; Ex parte Jackson [1985] 3 All ER 769, relied on by Mr Glenn for NTN, and I consider it to be distinguishable from the present circumstances particularly as it seems to be protecting the rights of individuals to seek the court’s assistance where there are matters of public interest and where the delay has been caused by the incompetence or inadvertence of legal services provided through a legal aid scheme. The applicants in this case are not acting under such a handicap nor have they been in the past. I consider the issue before me is severable from the issue in that case as well as the fact that the provisions of statute and rules referred to are different to those which apply in this jurisdiction.

The applicant, MNG, should be given leave for the purpose of presenting its case in relation to those matters requiring this Court’s attention made under O 16, r 4, and I so order."

3. On 29 April 1987 the case resumed after further affidavit evidence had been filed by Media Niugini and by NTN in reply.

Mr Steele, counsel appearing on behalf of PTC, sought leave to make submissions on behalf of his client and such leave was granted over the formal objection of NTN.

Mr G Thorley the Chief Executive Officer of Media Niugini was also examined on his two affidavits.

Submissions were then heard relating to the issue of delay.

APPLICATION FOR LEAVE (EXCLUDING THE ISSUE OF DELAY)

The originating summons filed by NTN sought leave to make an application for judicial review of the decision of the Board of PTC to grant broadcasting station licences to Media Niugini pursuant to the Radiocommunications Act (Ch No 152), s 6, and for orders for relief in the following terms:

"(a) An order of certiorari to remove into this Honourable Court and quash the decision made on 19 November 1985 by the first and second defendants to grant broadcast station licences to the third defendant pursuant to the Radiocommunications Act (Ch No 152).

(b) An order that in regard to any application by the third defendant for a broadcast station licence or licences the first defendant and the second defendant notify the plaintiff of that application and consider all submissions and documentary material to be delivered by the plaintiff in regard to the application.

(c) An injunction restraining the first and second defendants from granting or renewing further or other broadcast station licences to the third defendant until after the hearing of the proceedings herein.

(d) A declaration that the decision to grant broadcast station licences to the third defendant made by the first defendant or the second defendant on 19 November 1985 was void and of no effect.

(e) A declaration that the decision to grant broadcast station licences to the third defendant made by the first defendant or the second defendant on 19 November 1985 was a denial of natural justice and null and void.

(f) An order that the first defendant and the second defendant comply with the rules of natural justice."

The application for an injunction did not proceed and now forms no part of the applicant’s case.

The grounds on which relief was sought are:

"(a) That the said decision was null and void in so far as it involved a denial of natural justice in that the first defendant did not afford to the plaintiff a right to be heard.

(b) That the said decision was void and of no effect or invalid such decision having been obtained by fraud or misrepresentation.

(c) That the said decision was void and of no effect or invalid in that the first defendant acted upon irrelevant considerations namely the photocopy letter dated 7 November 1985."

In support of these grounds it was submitted that NTN had sufficient interest to bring this application because of its substantial financial commitment to its own broadcasting activities and the fact that it was the only other broadcasting licence holder.
It was submitted that despite the fact that the provisions of the Radiocommunications Act contain no statutory requirement that PTC hear from any person regarding the issue of a licence the particular circumstances surrounding the history of the introduction of television broadcasting in this country and the substantial involvement of NTN in those events should nevertheless entitle NTN to be heard.

NTN claimed that the vigorous conditions which applied to its gaining permission to broadcast, including lengthy negotiations with the State negotiating team which culminated in a project agreement with the State, had not applied to Media Niugini and that was unfair to NTN.

On the issue of the right of other licence holders to be heard in such circumstances, Mr Molloy sought some support from the decision in R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299. I indicated at the time and continue to hold the view that I considered that the principal rationale in that case for the court’s intervention was that an undertaking that the existing licence holders would be heard had been breached. It was not authority for a proposition of general application to require a hearing of pre-existing licence holders on a decision to increase the number of licences available by a licencing authority.

Mr Molloy contended that there were sufficient facts involving NTN’s situation which could lead to a court adopting a principle requiring that it be heard and that a final decision as to its rights could only be determined after the case had been fully argued.

On the question of Media Niugini’s licence being obtained by fraud or misrepresentation reliance was placed on the proposition advanced in Mr Finlay’s affidavit that PTC had acted on a letter from Andrew Yauieb, the then Secretary of the Prime Minister’s Department, which supported the grant of the licence. The letter was never officially released by Mr Yauieb. A copy is claimed to have been acted on by PTC. As I understand the argument of NTN it would intend to prove that this letter substantially affected the decision to grant the licence to Media Niugini.

On the application for leave it was submitted that all I had to be concerned with was whether the applicant had sufficient interest, or standing, to bring the application and if I so decided, whether the applicant had an arguable case.

Applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest (O 16, r 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, r 3(1).

In exercising its discretion the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, Lord Diplock set out the principles upon which the Court should act and I respectfully adopt them. Lord Diplock said (at 644):

"If, on a quick perusal of the material then available, the court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application." (My emphasis.)

The submission advanced by Mr Molloy would no doubt, if successfully argued, involve some development of the principles of natural justice and administrative law. In such circumstances s 60 of the Constitution may be in aid of the applicant’s argument for leave.

Section 60 is in the following terms:

"development of principles.

In the development of the rules of the underlying law in accordance with Sch 2 (adoption, etc, of certain laws) particular attention shall be given to the development of a system of principles of natural justice and of administrative law specifically designed for Papua New Guinea, taking special account of the National Goals and Directive Principles and of the Basic Social Obligations, and also of typically Papua New Guinean procedures and forms of organization."

I mention this section as it is a matter which in my view should form part of a court’s consideration in exercising its discretion on whether or not to grant leave where it has some hesitation, as I do in this case, as to whether the applicant has an arguable case.

Before proceeding to my ruling on this aspect of the proceedings I wish to make one further comment.

Order 16, r 3(3), provides for the Secretary for Justice to be given notice of applications for judicial review. No doubt the main reason for this provision is to enable the Secretary for Justice to appear where there are matters of public interest or pubic policy apparently involved. There was no appearance in this case and I am certain that the Court would have gained some real assistance had the Secretary for Justice participated. I accept that there may be many cases where such applications for leave would not be expected to attract attention but it is to be hoped that in future those which should are acted upon.

On that part of the application which involves the applicant establishing sufficient interest and that it has what might on further consideration turn out to be an arguable case I would be prepared to grant leave.

DELAY IN APPLYING FOR RELIEF O 16, R 4

Delay in bringing an application for leave will always be a matter to be considered in the exercise of discretion. Apart from the application of this general principle the court must consider the provisions of O 16, r 4 of the National Court Rules which I set out:

"4. Delay in applying for relief.

(1) Subject to the provisions of 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 judgment, order, conviction or other proceeding for the purpose of sub-rule (1) is four months after the date of the proceeding.

(3) Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made."

This case involves an application for an order for certiorari and therefore attracts the provisions of O 16, r 4(2).

The licence was granted on 19 November 1985. Allowing four months from that time the application is 11 months late. NTN through Mr Finlay was aware of the grant of licence on that day and was aware that his company had not been heard on the licence.

On 20 November 1985 Mr Finlay was made aware of the letter from Andrew Yauieb. On 26 March 1986 Mr Yauieb made a statutory declaration concerning the letter. At the latest NTN knew of the contents of the letter in March 1986.

NTN brought its concerns to the notice of relevant parties in the first part of 1986 and also made it clear in dealings with Media Niugini that it did not accept the validity of the licences issued.

It was submitted that the delay was not unreasonable because NTN considered that it would eventually air its complaint before the Inquiry Into Broadcasting and also because of the uncertainty of the impact of the attempts by the Government to prohibit the commencement of broadcasting. It was further submitted that against the background of these events NTN was in fact pursuing an alternative remedy which was open to it. It was asserted that until the failure by the Government to pass legislation earlier this year to provide for a Broadcasting Tribunal NTN had an alternative remedy to the one it now pursues.

I reject those submissions. The clear position was that despite any prospective legislation, enquiries or policy statements by the Government the cause of action in law which the applicant now seeks was available at the time the matters it complains of came to its notice. To put it another way, had NTN sought this application in March 1986 it would not have been refused on the basis that there was an alternative remedy available.

On the evidence before me I am satisfied that there has been undue delay particularly in view of the fact that the relevant period specified by the Rules of Court for an application such as this is four months.

The next issue for me to consider, having found undue delay, is whether the granting of the relief sought would cause substantial hardship, or substantially prejudice the rights of, any person or would be detrimental to good administration.

I have received extensive evidence from Media Niugini regarding its commercial commitments to the commencement of broadcast television. While part of its operations have been directed to market television which primarily involved in-house video production and distribution there is no doubt that the Company has made significant capital expenditure to its broadcasting operation. It has amongst other things taken steps to employ and train staff, set up premises, obtain further licences, applied for special leases and constructed a broadcasting tower. It has a co-siting agreement with NTN. It has made capital purchases to equip its production facilities.

NTN claims that many of these expenses could be recouped either through re-sale or by utilising the equipment through Media Niugin’s special relationship with Bond Television in Australia. Even if I were to give some credence to that claim, I am certain that invalidating the licences would have a substantial impact on its commercial viability against the steps it has taken since November 1985 to gear itself towards introducing a broadcasting service.

Media Niugini intends to shortly commence pilot broadcasting with a planned commencement of full broadcasting in August this year. It had its licences renewed since their first issue in November 1985.

On all of the material before me I am of the clear opinion that granting of the relief sought would be likely to cause substantial hardship to Media Niugini.

While there was no substantial argument on the point I am also of the view that in the circumstances granting of the relief sought would also be detrimental to good administration. There comes a time when things are entitled to be as they appear. An applicant who is involved in challenging a decision which has implications for another party or for public administration is under a heavy duty to act expeditiously and fairly.

The applicant in this case is not entitled to sit on its allegations and claims while to its clear knowledge a party affected continues to make commercial commitments only to seek relief at a time which will be convenient to it.

It follows from what I have said that in the exercise of my discretion under O 16, r 4, I refuse to grant leave to make the application for judicial review.

Application for judicial review refused

__________________

Lawyer for the applicant: Beresford Love Francis & Co.
Lawyer for the first and second respondents: Steeles.
Lawyer for the third respondent: Gadens.