N845

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CENTRAL POMIO LOGGING CORPORATION PTY LTD

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND OTHERS

Waigani
Kapi DCJ

12 May 1990
18 May 1990
21-24 May 1990

1 June 1990

ADMINISTRATIVE LAW - Judicial review of administrative acts - Application for leave - Where statutory remedies pursued - Remedies not alternative — Judicial review not available - Customs Act (Ch No 101), s 178.

CUSTOMS - Customs control - Clearance of goods for export - Dispute as to - Dispute referred to Comptroller of Customs - Same dispute cannot be subject of judicial review - Customs Act (Ch No 101), s 178.

The Customs Act (Ch No 101), s 178, provides:

"(1) If a dispute as to a matter not involving a contravention of this Act arises under this Act or in relation to the customs, the matter may, at the request of the persons interested, be referred to the Comptroller for decision and the Comptroller may, in such manner as he thinks proper, inform himself as to the circumstances, and determine the matter.

(2) A determination by the Comptroller under Subsection (1) is final."

Held

Where an interested person opts to refer a matter to the Comptroller of Customs under s 178 of the Customs Act, he cannot also seek to challenge the decision by way of judicial review.
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 101, applied.

Cases Cited

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 101.
National Capital District Interim Commission v Bogibada Holdings Pty Ltd [1987] PNGLR 135.
Rundle v Motor Vehicles Insurance (PNG) Trust No (1) [1988] PNGLR 20.

Application for Judicial Review

This was an application for judicial review pursuant to the National Court Rules, O 16.

Counsel

C Coady, for the plaintiff.
Z Gelu with P Harricknen, for the defendants.
Cur adv vult

1 June 1990

KAPI DCJ: This is an application for judicial review pursuant to O 16 of the National Court Rules. The leave for review was granted by Kidu CJ on 15 May 1990.
Pursuant to O 16, r 5 of the National Court Rules the applicant has applied for judicial review by notice of motion. Several orders were sought in the notice of motion but during the course of the hearing of this matter, the application has been reduced to seeking the following orders:

(1) An order by way of mandamus directed to the second defendant to consider according to law an application by the plaintiff for approval and or clearance of an export entry for export of a certain parcel of logs on board the MV No 3 Kendari from Rabaul.

(2) An order by way of declaration that the plaintiff has complied with all lawful requirements of timber permits TP15-16 and the laws of Papua New Guinea in and about the harvesting and export of a certain parcel of logs on the MV No 3 Kendari for shipment on 27 April 1990.

(3) An order by way of declaration that upon the plaintiff having paid or tendered to the Provincial Forests Officer at Rabaul royalty payments for all logs harvested and taken from the Timber Permit Area TP15-16 that no further permits, licences or approvals are necessary to be obtained from the Forestry Department for the export of logs upon which those royalties have been paid or tendered.

Let me set out the circumstances under which the present dispute arose. The Central Pomio Logging Corporation Pty Ltd, the plaintiff, applied and obtained a permit under s 10 of the Forestry Act (Ch No 216). This permit commenced on 1 November 1980 for a period of ten years and it relates to the Pomio-Rak Reva (Waterfall Bay) in the East New Britain area.

The plaintiff entered into a contract of sale of logs with Imanaka Ltd, a Japanese company in Osaka, Japan.

The ship MV No 3 Kendari arrived on 28 April 1990 at Gonaile where the plaintiff operates its business and loaded logs for export for Imanaka Ltd in Japan. On 4 May 1990, the agents for the plaintiff approached the Collector of Customs at Rabaul for the purpose of arranging a clearance of the ship and its cargo. However, the Customs officer, Philip Naime, would not clear the ship. A number of grounds were raised for refusing to clear the ship. It is not necessary to deal with all of these matters as they do not form part of the issues for determination in this hearing. For the purposes of this hearing, Mr Naime refused to clear the ship on the basis that amongst the logs that were loaded on MV No 3 Kendari there was a group of logs which are referred to as "fresh logs" which were loaded without being checked by the Forestry officers, for species identification, for scaling and grading of the logs. These reasons were later confirmed in a letter dated 10 May 1990 written by Mr Philip Naime, Acting Collector of Customs, to the Central Pomio Logging Corporation. After the plaintiff was refused the clearance of the logs on 4 May, it referred the matter to the Comptroller of Customs in Port Moresby under s 178 of the Customs Act (Ch No 101). Section 178 is in the following terms:

"(1) If a dispute as to a matter not involving a contravention of this Act arises under this Act or in relation to the customs, the matter may, at the request of the persons interested, be referred to the Comptroller for decision and the Comptroller may, in such manner as he thinks proper, inform himself as to the circumstances, and determine the matter.

(2) A determination by the Comptroller under Subsection (1) is final."

For the purposes of this provision, counsel for the plaintiff has treated the dispute in this case, namely the non-clearance of the goods for export on the basis that certain logs were not checked by the Forestry officers for species identification, scaling and grading, as a matter not involving a contravention of this Act. The requirement for species identification and grading is required by the provisions of the Customs Tariff Act (Ch No 101A). Under this Act, logs for purposes of export are classified into five main groupings as follows:

Item 21 includes all goods (except rosewood, kwila, teak, blackbean, cedar, planchonella, mersawa, taun, walnut, calophyllum, terminalia, burckela, hopea and glutea) attracts a duty of 9 per cent of the price.

Item 21A which refers to rosewood, kwila, teak and blackbean, attracts a duty of 40 per cent of the price.

Item 21B which refers to cedar and planchonella attracts a duty of 35 per cent of the price.

Item 21C which refers to mersawa, taun, walnut and calophyllum attracts 22 per cent of the price.

Item 21D which refers to terminalia, burckela, hopea and glutea, attracts a duty of 12 per cent of the price.

For the purposes of determining duty, the Department of Forests has developed a system whereby its officers check the species identification and grading of logs for export into these various groupings. The practice that has been developed is that the Forestry officers take a 10 per cent sample check of all the logs before they are approved, for the purposes of calculating the duty. The nature of the dispute is that a certain group of logs loaded on the MV No 3 Kendari which are referred to as "fresh logs" were not checked by the Forestry officers before they were loaded. The customs officer refused to deal further with these logs for the purposes of clearing the ship. Counsel for the plaintiff has treated this dispute as coming within the terms of s 178 of the Customs Act (Ch No 101) and counsel for the defendants has not questioned this. I have therefore proceeded on the basis that this dispute comes within the ambit of s 178 of the Customs Act.

MANDAMUS

Under par 1 of the notice of motion, the plaintiff seeks an order by way of mandamus directed to the second defendant to exercise his discretion to deal further with these logs for the purposes of clearing the ship. It is clear, and I need not refer to any authorities, that where a person is granted a power, he should exercise that power when the need arises. If he refuses to do so, then an order in the nature of mandamus may be made to direct him to exercise that power. The application for an order for mandamus in this case must fail as it is clear from the evidence that the Collector of Customs in Rabaul has exercised the discretion given to him by law. In this case he has exercised his discretion against the interest of the plaintiff.

DECLARATIONS

In considering the remaining orders by way of declarations, a preliminary point arose as to whether the plaintiff, having exercised the option or the right to refer the matter to the Comptroller of Customs under s 178 of the Customs Act against the decision of the Customs officer in Rabaul, can now by way of judicial review deal with the same matter. It is now established in this jurisdiction, that where a statutory remedy by way of review by another authority is provided for under a statute and where there are no expressed words taking away the judicial review jurisdiction of the National Court, the existence of the statutory remedy by way of review is no bar to the exercise of the judicial review jurisdiction: see Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. The question here is whether the plaintiff, having exercised the option to review the decision of the customs officer in Rabaul by proceeding to the Comptroller of Customs under s 178 of the Customs Act, can now proceed by way of judicial review seeking to review the same decision. In the case of Kekedo v Burns Philp (PNG) Ltd, the Court there was concerned with a consideration of provisions of the Employment of Non-citizens Act (Ch No 374) which provided for an appeal to the Minister from a decision of cancellation of a work permit pursuant to s 9 of the Employment of Non-citizens Act. In that case, the respondent filed an appeal to the Minister under s 9(4) of the Employment of Non-citizens Act, but instead of proceeding with that appeal, proceeded by way of judicial review to the National Court. The intention was that if the application for judicial review in the National Court failed, then it would proceed further with the appeal pending before the Minister. In considering this matter, Amet J said (at 126-127):

"In this case, the respondents did lodge an appeal to the Minister pursuant to s 9(4) within 14 days, on 29 August 1988, but five days after having obtained leave from the National Court, on 24 August 1988, to apply for judicial review. As I said, counsel for the respondents submitted that this was adopted as a deliberate choice to protect the believed option to still pursue the remedy of appeal to the Minister, should the application for judicial review to the National Court be unsuccessful.

Well, to say the least, this belief is totally misconceived and mischievous. I cannot imagine that an aggrieved litigant who elects the option of going directly to the Supreme Court of law for redress, would then be permitted, if he were unsuccessful, to pursue the alternative remedy before an inferior court. It is even more improbable to impossible to then seek to go back to an administrative tribunal such as in this case, to a Minister. There are hierarchies of tribunals, from administrative to judicial, and if an agreed party chooses to bypass a statutory administrative remedy to a superior court, he cannot then be permitted to go back to the administrative remedy with the subsequent rights of appeal to the same superior court should he be further unsuccessful. I find the proposition quite mischievous and without substance. It would be tantamount to an abuse of process, in my view, for this Court to countenance such a contemplated course: see Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1987] PNGLR 44."

Cory J and I agreed with Amet J on this matter.

In Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1988] PNGLR 20, the Court there was concerned with s 54(6) of the Motor Vehicles (Third Party Insurance) Act (Ch No 295) which provides:

"unless notice of intention to make a claim is given by the claimant to the Trust within a period of six months after the occurrence out of which the claim arose, or within such further period as:

(a) the Commissioner, or

(b) the Court before which the action was instituted, on sufficient cause being shown allows."

The Supreme Court in considering this provision came to the conclusion that where a person applies to the Commissioner for extension of time, this is not an exercise of an option and therefore does not prevent the party from further applying to the National Court if the application is refused by the Commissioner. The Court came to this conclusion on the basis that the Parliament intended that an application to the Commissioner was an easy and speedy way of dealing with the issue before coming to the National Court. The Court further held that where a party elects to apply to the National Court it cannot go back and apply for the same relief before the Commissioner. The only option open is for the party to appeal against the decision of the National Court to the Supreme Court.

I consider that where a party exercises the option under s 178 of the Customs Act and refers the matter to the Comptroller of Customs, he cannot go back by way of judicial review and further deal with the same issue by way of a judicial review in the National Court. The decision in Rundle v Motor Vehicles Insurance (PNG) Trust cannot be applicable as the provisions in that legislation, namely, the Motor Vehicles (Third Party Insurance) Act, do not make provision by way of an appeal to another authority other than the National Court from the decision of the Commissioner. In this case there is provision made for the matter to be referred to the Comptroller of Customs. Where a person wishes to challenge a decision of the Collector of Customs under the Customs Act, he has an option whether to proceed by way of judicial review under O 16 of the National Court Rules or to proceed by way of the review provisions set out under the Customs Act. Whether or not he may proceed by way of judicial review is in the discretion of the National Court and the principles for exercising this discretion are set out in Kekedo v Burns Philp (PNG) Ltd. If the person chooses to do this, then he may, of course, appeal all the way up to the Supreme Court. If however, a party decides not to proceed by way of judicial review but by way of the procedure laid out under the Customs Act, in my view, this is an election and he cannot pursue the matter by way of judicial review. Such a person may apply by way of judicial review of the decision of the Comptroller. Whether or not he can do this is not a matter which I have to decide in this hearing. The plaintiff has not sought the judicial review of the decision of the Comptroller of Customs. However, when this issue is considered, s 178(2) of the Customs Act and the inherent powers of the National Court to review exercise of judicial authority under s 155 of the Constitution are relevant.

In the present case, the decision of the Collector of Customs was based on the claim by the customs officer that the Forestry officers did not check the "fresh logs" on the MV No 3 Kendari. The plaintiff took up this very issue in referring the matter to the Comptroller of Customs under s 178 of the Customs Act. In a letter dated 8 May 1990, the plaintiff in setting out its appeal to the Comptroller of Customs, said:

"The logs for shipment which are the subject of an export entry are currently on board the ship which has been sitting in Rabaul Harbour waiting for clearance since 4 May 1990. Your officer in Rabaul has refused to clear the ship on the grounds that Forestry do not want the ship to sail."

According to the evidence, the Acting Comptroller of Customs, Eria Leva, dealt with the matter. On the question of the "fresh logs", he appeared to have reached the same conclusion as the Collector of Customs in Rabaul because he concluded amongst other things that: "Customs is prepared to clear vessel to sail once matter between Forestry and Company is resolved." I conclude from this that the Comptroller affirmed the decision of the Collector of Customs in Rabaul.

The orders sought by the plaintiff by way of declarations related to the same issues taken up by the plaintiff before the Comptroller of Customs. The declarations sought are matters which are relevant to the clearing or the dealing with the goods for purposes of clearing the ship to sail. Having opted to review this matter by way of review under s 178 of the Customs Act, the plaintiff cannot by way of judicial review, deal with the same matters and have a second bite at the cherry. In my view that is an abuse of process.

In any case, even if I were wrong on the preliminary matter and proceed to deal with the declarations sought by the plaintiff, the declarations would not finally dispose of the matter of dispute raised by the Collector of Customs and the Forestry Department. The declarations sought would not finally dispose of this matter as the declarations would be merely declaring the rights or the position of the plaintiff with regard to certain requirements. As far a I can tell from the evidence, the customs officer maintains that the "fresh logs" must be re-checked before the boat is cleared. Under s 178(2) of the Customs Act the decision of the Comptroller of Customs stands. This could only be reversed by an order of the National Court upon review of the decision of the Comptroller of Customs. Following the decision of National Capital District Interim Commission v Bogibada Holdings Pty Ltd [1987] PNGLR 135, I would in the exercise of my discretion refuse to grant the declarations sought.

Application refused

_____________

Lawyers for the plaintiff: C Coady & Associates.
Lawyer for the defendants: Acting Solicitor-General.