N4463

PAPUA NEW GUINEA [IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 838 OF 2011

BETWEEN:

RABAUL SHIPPING LIMITED
Plaintiff

AND:

ALLAN MARAT 
in his capacity as 
ATTORNEY GENERAL AND 
NOMINAL DEFENDANT FOR THE HEAD OF STATE
First Defendant

AND:

PNG PORTS CORPORATION LIMITED
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Manuhu, J. 2011: 8 & 12 December

JUDICIAL REVIEW – Leave – Regulation-making powers of the Head of State, on advice – Sufficient interest – Delay – Arguable case – Consideration of merits of grounds 

Case cited: 
Asukusa v Kumbakor, Minister for Housing (2008) N3303 

Counsel:
I. Molloy with Jacqueline Marubu, for the Plaintiff. T. Tanuvasa, for the First and Third Defendants. J. Aisa, for the Second Defendant.

12 December, 2011

1.	MANUHU, J: This is an application for leave for judicial review of a decision by the Head of State acting on advice of the Nation Executive Council to make the Ports (Management and Safety) Regulation 2010 (Regulation), particularly sections 4, 7, 12 and 20 pursuant to the Harbours Act, Ch No 240 (Act).

2.	The only issues that arose during submissions were in relation to the question of delay and arguable case. Other requirements of leave were not argued and I am satisfied on the materials before me that they have been met. It is appropriate to just note that the Plaintiff has sufficient interest in that, as a major shipping agency, the Regulation would affect its business operations and, as such, he has sufficient interest in the regulation of Ports. He has demonstrated this by raising his concerns with the Second Defendant. His interest is also pleaded in the Statement.

3.	In respect of delay, the Regulation was enacted on 26 November 2010. The proceeding was filed on 7 November 2011. It is argued for the Defendants that lapse of more than 11 months since enactment is a substantial delay and the Plaintiff's explanation for the delay is not acceptable. The Plaintiff explains that he only became aware of the Regulation after a public notice on 17 June 2011. The Plaintiff sought advice and wrote to the Second Defendant on 22 September 2011 and pointed out that some parts of the Regulation infringed its rights and interfere with its management of its business. The Second Defendant did not respond. Upon further enquiry, the Second Defendant responded on 7 October 2011 refusing to entertain the Plaintiff's concerns. This proceeding was then instituted. In the circumstances, there is no undue delay in the institution of this proceeding.

4.	In relation to arguable case, it is argued that a judicial review is concerned with the process involved in arriving at a decision, not the decision itself. However, the Plaintiff pleads excess of jurisdiction, which is an established ground for judicial review. "Judicial review is available where the decision-making authority exceeds its powers or there is lack of jurisdiction, commits an error of law …": Asukusa v Kumbakor, Minister for Housing (2008) N3303 per Injia, DCJ (as he then was).

5.	The arguability of the Plaintiff's grounds is as follows. In relation to section 4 of the Regulation, section 51 of the Act permits the making of a regulation in respect of "construction and the method of construction" of wharves, docks, piers, jetties, embankments, sheds, landing stages, slips, platforms, roadways, railways, tramways or hoisting shears and engines.

6.	However, section 4 arguably goes beyond this by requiring "prior written approval" of the Port Manager. Secondly, the list of facilities under section 51 is also expanded to include a "Port or Port Facility". "Port Facility" is wider than the list in section 51. Thirdly, under section 4, "economic impact statements and other information" is required from "time to time" by the Port Manager. This is arguably not permitted as there is no provision for economic impact statements to be furnished to the Port Manager under section 51.

7.	Section 7 of the Regulation uses the term "Port Facility" as well and is also arguably beyond the scope of facilities listed under section 51 (2) (c) of the Act. Section 11 is also arguably ultra vires in that, by permitting the Port Manager to issue "written order" in relation to "standards and specification for the construction and maintenance of Ports and Port Facilities", it purports to delegate an expanded scope of regulation-making powers of the Head of State, on advice, to the Port Manager.

8.	It is not necessary to discuss the merits of sections 12 and 20. I am already satisfied that the Plaintiff has established an arguable case.

9.	May I add that a Regulation, as I understand it, is for the purpose of clarifying and facilitating implementation of an Act. For instance, where an Act permits its Regulation to make a provision for a fee for a specific activity, that Regulation would prescribe that fee for that activity and nothing more. If a new activity is to be added, that addition is made to the principal Act and the relevant fee is then prescribed in the Regulation. A Regulation should complement its enabling Act.

10.	In this case, there are 51 main sections in the Act. There are 87 main sections in the Regulation. The provisions in question appear to be so wide that perhaps a sub-Regulation is also needed to facilitate implementation of the Regulation. 

11.	In the circumstances, I will exercise my discretion in the Plaintiff's favour and grant leave.
_________________________________________

In-house Lawyers: Lawyer for the Plaintiff 
N. Devete, Solicitor General: Lawyer for the First & Third Defendants 
In-House Lawyer: Lawyer for the Second Defendant