National Court of Papua New Guinea

4. &160; #16 ;The aTheicpplication fion for judicial review concerns a portion of land declared as Defence Reserve Area, which portions of land were the subject of grants made by the Department of Lands, to the second defendant PNG Harbours Limited. The then gazettal of the land as land reserved for purposes of public defence or a Defence Reserve Area, was done by way of Government Gazette No. 20 of 1965, dated 8th April, 1965. It was signed by the then administrator Mr D.M Cleland. The declaration of reservation reads in part;

"Reservation of land from lease

Whereas by proclamation made under the Land Ordinance 1911 – 1961 of the Territory of Papua and dated the 25th day of January, One thousand Nine hundred and fifty-five, and published in gazette no. 7 of the 3rd day of February, One thousand Nine hundred and fifty-five, the land described in the schedule to that proclamation was reserved from lease for the purpose of Public Defence;

AND WHEREAS by a further proclamation the area so reserved was redefined;

AND WHEREAS it is desired to further redefine the area so reserved;

AND THEREFORE I, Sir Donald MacKinnon Cleland, Administrator of the Territory of Papua and New Guinea, by virtue of the powers conferred by the Land Ordinance 1962 and all other powers me enabling, hereby reserve from lease the Administration land described in the Schedule hereto for the purposes of Public Defence.

5. ـ The plai plaintiffs submit that the reserved area covers the whole of the old Papua Yacht Club and the old DCA Marase and extends a fair way toward the old Mobil Service Station covering the area now beingbeing re-claimed by Garamut Enterprises. Also situated in this area is the Defence Marine Base also known as ‘Lancron’.

6. On 18th July, 006,Rehe traistrar of Titles placed a notice dated 5th July, 2006 in the Post Courier stating that he intended issuinofficopy ote Leol. 3io 8931 Allotment 8 Section 53 Granville, National onal CapitCapital Dial Districstrict to t to the second defendant, after the expiration of 14 days. This prompted the plaintiffs through Chief of Staff Captain Alois Ur Tom, to send a written objection to the Registrar of Titles.

7. lai piffstclaim they were nere not and have never been notified of this re-survey, re-zoning and re-mapping which was carried out by the second and third defendants. They submit that the fourtfth axth dants also did notd not cons consult tult them when considering the second defendants application for special purpose lease.

8. There is no dispute that the land in question, the subject of these proceedings was a Defence Reserve Area. The dispute is in relation to the manner in which the present Special Purpose Lease was acquired, first by the State and secondly, by the second defendant.

What is "reserved land", in this case, a ‘Defence Reserve Area’?

9. A Defence Reserve Area or "Defence Area" is defined under s. 1 of the Defence Act Chap. 74 to be;

"means any land, water, air space, or part of the sea-bed or the sub-soil of the sea-bed, or any building or part of a building, whether within or outside the country, that is reserved under the Land Act 1996, or set apart, used, occupied or otherwise controlled for defence purposes."

10. &#n othrdswoit i it is land land, set apart exclusively for Defence purposes.

This application for judicial review

11. &#16 amended Oriing Ss fil fil the plhe plaintiaintiffs&#ffs’ lawyers on 21st September, 2006, contains very lengthy claims for relief. I need not set them only png out the relate to the orders that weat were grre grantedanted on t on the application for leave, which I have already set out and which I will discuss under various subheadings. All orders sought are in the nature of Declarations or Restraining Orders.

Issues

12. The issues that are most prominent are;

1. What is ‘Defence Reserve land’?

2. What is a Trustee and whose task is it to appoint trustees?

3. Should the second defendantough egistf Titles, ths, the Offe Office oice of the Secretary for Lands and Physical Planning and the Lands and Physical Planning Board, have informed the Office of the Commander of the Defence Force, at that time in 1978, or the Trustee, if any, of the application for a Special Purpose Lease, over the Defence Reserve Land?

13. I dische tsuesstogether, her, having already answered what a ‘Defence Reserve Land’ is.

Analysis of evidence and the law

19. Because eroces inge cermencmmenced by originating summons, there are no pleadings. Pleadings only arise in actions commenced by writ and not in any other originating process (Steamships Trading td v ut Enises Ltdd (2002(2002) N1959). In Judicial Review proceedings, the originating summons must be supported by a statement "...setting out ..., the relief sought and the grounds on which it is sought." (O. 16 r. 3 (2) (a) and, subject to sub-rule (2) no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement (O. 16 r. 6 (1)). Therefore, the plaintiff must specifically raise grounds it relies on in the statement (see Koitachi Ltd v Walter Schnaubelt (2007) SC870 dated 11th September, 2007).

20. ټ Mr MacDonald sald submits that the plaintiffs cannot raise events that occurred between 1971 to 1996, namely the issue of the lease to the second defen He ss that this is because the plaintiffs did not outt outline their case in a legally consistesistent manner and that therefore, the pleadings have no basis.

21. I wot accept Mr MacDonald&#ald’s submissions only because it is very premature at this time to either dismiss proceedings for lack of good pleadings or order amendments to be made because tcessacumenn which incl includes udes decisdecisions made and the records of those meetings etc, are not before me. This is so, predominantly because all defendants, with the exception of the second defendant, have not shown any interest in these proceedings. The records of these various public authorities, named as defendants, are very important for the purposes of Judicial Review. My brother Injia DCJ emphasized this in Julian Baida v Peter Kobua (2004) N2634 dated 13th September, 2004, when he said;

"The availability of the full certified records or depositions kept by the decision-making Court, Tribunal or authority is a pre-requisite to the conduct of judicial review. This is a pretty basic requirement and fundamental to the proper conduct of judicial review, which in the past, in my experience, seems to have been paid little attention by the parties and the Courts. The Judicial Review process is about examining the process of the decision-making by a tribunal or public authority established under statute. The decision-making process involves the tribunal keeping some formal records of its proceedings. It is the decision-making process embodied in those records which is removed and placed before the National Court under the Prerogative Writ process, the court examines it and determines the application..."

...

As a rule of practice, from now on, the court must and will insist on the appropriate custodian of those records, to provide a certified copy of the full tribunal or authority’s depositions or records on the matter, as a pre-requisite to the conduct of a substantive review.

...

Those entrusted statute with keeping those official records, must now take their jobs seriously and take stock of their records and keep them in safe custody in order to discharge their duty to the National Court and the public who wants to access these records."

22. ټAcng to t to the newe new Judicial Review Rules, application for certified records must be made at the pre-trial stages. Although this was not done in this case, this court can, in the exerof iterent jurisdictioiction, win, with a view to ensuing that Justice is done, order the production of these records etc.

23. It is os iout phaintiafs cofs counsel drafted the documents filed in support of the application for Judicial review, without the benefit of these records. The court will ask for counsels submissions on necessary amendments, after it has sighted these documentation. I deal with this further below.

24. As I said, Mr MacDonald’s submissions are prematurely made at this time.

b. Trustees and Reserved Land;

25. ـThend defd defendantndant submits that for the gazettal of 1965 to have legal effect and to create an interest protected by law, that the Minister must appoinroup ustees who will then be empowered to place the rehe reserveserve land under their control and to carry out the objects of the trust. The second defendant submits that s. 29 provides that upon the appointment of trustees, they then become a legal entity and are deemed to be a body corporate. Only then, can the trustees apply for a Special Purpose Lease to fulfil purposes specified in the gazettal notice.

Should trustees have been appointed at that time (i.e period after 1965?) And whose task is it to appoint Trustees?

26. Section 28 (1) of the Land Ordinance 1962 states that trustees are appointed by the Administrator, for land reserved from lease and the land is then placed under the control of the Trustees.

27. Sn 28 (1) states also that that the Administrator may, by notice in the Gazette, appoint a Trustee or Trustees etc (my emphasis). There is no evidence before me as to whether Trustees were appointed. There is also no evidence before me as to why it was not done. It may have been because there was no need to appoint trustees at that time because the land was reserved for Defence purposes which obviously was or is not a money making purpose. The overwhelming good evidence is that the land remained Defence Reserve Land and still had that status when the State reserved it for a Special Purpose Lease in 1978 and the second defendant acquired it in 1979. Also, under that act, it was the Administrator’s prerogative to appoint trustees, not anybody else.

28. As fe process, I do not havt have evidence before me as to the steps to be taken by the Administrator before appointment of a trustee. Therefore, I will not accept Mr MacDonald’s submissions the ce For the Commanommander ider in Chin Chief should have taken that step, because I do not know.

Should the second defendant have informed the plaintiff, more particularly the Office of the Commander of the Defence Force, of the acquisitions in 1978 and 1979?

29. ҈ The first andt and third, to the seventh defendants have not come to Court with evidence of the part they played in the re-surveying and re-zoning of the land in question. Tau Vini, the second defendant’s legal or, only deposes in his affi affidavit sworn on 2nd May, 2007, that, after extensive search, he was unable to locate any files with materials on how the State Lease was acquired for PNG Ports, the second defendant, on 20th August, 1979. He deposes that the majority of the employees who had anything to do with the grant of the State Lease, have now moved on, to their respective countries.

30. ټThcess foss for the the grant of State leases at that time in 1978 is as contained in Divisions 1 and 2 of the Land Act Chapter 185. There is no evidence before me that such process was complied with. Tau Vini’s evidence does not tell me that process was complied with or not. Therefore, it is necessary for the Department of Lands to produce these records to the court for purposes of determining whether process under that act was complied with or not.

31. Addilly, under the LaLand Act Chap. 185, there must be a Custodian of Trust Land, at that time (1978) appointed under the Land Registration Act Chap. 191 (‘LRA’) (s.1 of Land Act Chap. 185). This is provided for under Part XVIII of the LRA. Section 167 of the LRA, which is contained in Part XVIII, is specific, that the Minister "shall" by Notice in the National Gazette, appoint a person to be custodian. There is no evidence that this was ever done.