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Amatus v Oneill [2012] PGNC 49; N4718 (18 April 2012)

N4718

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No.150 OF 2012 (JR)

BETWEEN:

PETER AMATUS
Plaintiff

AND:

HON. PETER ONEILL CMB, MP as Chairman; HON. BELDEN NAMAH, MP; HON. DON POLYE, MP; HON. SAM BASIL, MP; HON. BART PHILEMON, MP; HON. WILLIAM DUMA, MP; HON. KEN FAIRWEATHER, MP; HON. CHARLES ABEL, MP; HON. DAVID ARORE, MP; HON. DR. ALLAN MARAT, CBE, MP; HON. GUMA WAU, MP; HON. ANDREW MALD, MP; HON. THEODORE ZURENUOC, MP; Rt. HON. SIR MEKERE MORAUTA KCMG, MP; HON. SIR PUKA TEMU KBE, MP; HON. THOMSON HAROKAQVEH, MP; HON. BENJAMIN PHILIP, MP; HON. ANO PALA CMG, MP; HON. SALI SUBAM, MP; HON. MARTIN AINI, MP; HON. JAMIE MAXTONE GRAHAM, MP; HON. JOHN BOITO, MP; HON. JOB POMAT, MP; HON. SAI BESEO, MP; HON. JIM MIRINGTORO, MP; HON. MARK MAIPAKAI, MP; HON. FRANCIS AWESA, MP; HON. BYRON CHAN, MP; HON. MOSES MALADINA, MP; HON. STEVEN PIRIKA, MP; HON. LUKAS DEKENA, MP; HON. PURI RUING, MP; and HON. WAKE GOI, MP as members of the National Executive Council
First Defendants

AND:

HON. BELDEN NAMAH as MINISTER FOR FORESTS
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: David, J
2012: 13 & 18 April

ADMINISTRATIVE LAW – judicial review - application for leave – considerations relevant to exercise of discretion – no locus standi – application refused - National Court Rules, Order 16.

Cases cited:

Attorney-General Michael Gene v Hamidian Rad [1999] PNGLR 278
Leto Darius v Commissioner of Police (2001) N2046

Counsel:

Rex Mann-Rai, for the plaintiff
Irene Mugugia, for the defendants

RULING ON APPLICATION FOR LEAVE

18 April, 2012

1. DAVID, J: The plaintiff, Peter Amatus applies for leave to judicially review the decision of the First Defendants, as Chairman and members of the National Executive Council (the NEC) (Decision No.NG 32/2012 at Meeting No.NG09/2012) dated 15 February (the decision) giving, inter alia, directions to the Second Defendant as Minister for Forests and to the PNG National Forest Board.
   
2. The substantive relief the plaintiff seeks is; a declaration that the decision was made ultra vires and consequently null and void; further or in the alternative, an order in the nature of certiorari quashing the decision; further or in the alternative, an order declaring that the decision was a proscribed act contrary to Section 41 of the Constitution therefore unlawful; further or in the alternative, an order in the nature of prohibition prohibiting the defendants, their officers, servants and agents from acting upon or giving effect to the decision; and further or in the alternative, an order in the nature of an injunction restraining the defendants, their officers, servants and agents from acting upon or giving effect to the decision.
   
3. The plaintiff relies on the following principal documents:
   
   1. Originating Summons filed on 15 March 2012;
      
   2. Statement in Support filed pursuant to Order 16 Rule 3 (2)(a)of the National Court Rules on 15 March 2012 (the Statement);
      
   3. Notice of Application for Leave to Apply for Judicial Review filed on 15 March 2012;
      
   4. Affidavit of Peter Amatus sworn on 9 March 2012 and filed on 15 March 2012 verifying the statement.
      
4. Having been satisfied that notice of the application for leave had been given to the Secretary for Justice pursuant to Order 16 Rule 3 (3) of the National Court Rules, I proceeded to hear the application: see Affidavit of Service of Nori P. Wetao sworn on 19 March 2012 and filed on 21 March 2012 and Affidavit of Service of Rex J. Mann-Rai sworn and filed on 21 March 2012 in the Court file.
   
5. An application for leave for judicial review involves the exercise of discretion and such discretion must be exercised judicially. For leave to be granted, the plaintiff must generally establish five requirements. These were summarised by Kandakasi J in Leto Darius v Commissioner of Police (2001) N2046 and they are:
   
   1. He has the locus standi, that is he has sufficient interest in the matter or has a right which is being affected by way of an injury or damage by the decision sought to be reviewed;
      
   2. The decision sought to be reviewed is that of a public body or authority;
      
   3. The applicant has an arguable case on the merits;
      
   4. All other available remedies have been exhausted; and
      
   5. The application is being made promptly without undue delay.
      
6. The Independent State of Papua New Guinea (the State) has been joined as the Third Defendant to these proceedings and has exercised its right under section 8 of the Claims By and Against the State Act to be heard on the application for leave.
   
7. The State opposes the application on several grounds. It does not rely on any Affidavit.
   
8. Ms. Mugugia of counsel for the State raised a number of matters in relation to the originating summons and the statement and these are.
   
   1. the originating summons is defective or flawed because it only seeks an order for leave.
      
   2. the originating summons does not plead the year when the decision was made.
      
   3. the statement is defective or flawed because it should be restricted to pleadings only and should not contain evidentiary matters as is demonstrated by the attachment to it of copies of the decision, the gazettal of the decision in National Gazette No.G66 dated 23 February 2012, and proposed deeds of settlement with parties named as Madang Timbers (PNG) Limited as plaintiff and Joseph Lelang & Others as members of the National Forest Board as defendants in connection with National Court proceedings instituted by OS 329 of 2010.
      
   4. the originating summons and the statement which constitute the pleadings in judicial review proceedings do not properly and sufficiently plead the particulars of the decision, the law breached and also do not define the relevant legal issues to be tried.
      
9. I will address the preliminary matters raised by the State first in the order I have set out above.
   
10. First, Order 16 Rule 3 (2) of the National Court Rules provides that an application for leave must be made by originating summons. Concise reference to the source of power of the Court derived from Order 16 Rule 3 of the National Court Rules is made. I reject this submission.
    
11. Second, I accept the submission, but paragraph 1 of the originating summons gives the numbers of the decision and the NEC meeting. It is obvious that the decision was made at a meeting conducted in 2012. The failure to insert the year in which the decision was made after "15 February" in my view is therefore not fatal and can be rectified by amendment on application which is allowed under Order 16 Rule 3 (4) of the National Court Rules.
    
12. Third, the general rule about pleadings in proceedings commenced by writ of summons is that a statement of claim should contain only a statement in summary form of the relevant and material facts on which he or she relies, but not the evidence by which those facts are to be proved: Order 8 Rule 8 of the National Court Rules. This Rule generally does not apply to proceedings commenced by originating summons: Order 8 Rule 1 of the National Court Rules. It has been authoritatively stated by the Supreme Court in Attorney-General Michael Gene v Hamidian Rad [1999] PNGLR 278 that the National Court Rules on judicial review proceedings provides the exclusive procedure for judicial review proceedings. The relevant rules are found in Order 16 as amended by the Judicial Review (Amendment) Rules 2005. Order 16 Rule 3 (2)(a) of the National Court Rules prescribes what should be pleaded in the statement and these are; the name and description of the applicant; the relief sought; and the grounds on which it is sought. I am of the view that the plaintiff has substantially met these requirements. Unlike Order 8 Rule 8 of the National Court Rules, there appears to be no specific prohibition under Order 16 of the National Court Rules to attach evidentiary matters to a statement in support. Counsel has not drawn my attention to any case precedent in this jurisdiction stating otherwise. I reject this submission.
    
13. Fourth, I think this submission has no merit and I reject it. The pleadings are sufficient for the purpose of the leave application. If the plaintiff succeeds in the leave application, he is permitted to apply to the Court for leave to amend the statement under Order 16 Rule 3 (4) of the National Court Rules.
    
14. As to whether all the requirements for leave have been met, the State took issue with only 2 of them. First, the plaintiff has no locus standi as he has filed the proceedings in his own name. Second, there is no arguable case for judicial review as the NEC acted within powers conferred upon it by sections 75 (2) and 76 (3) of the Forestry Act and the decision was made to comply with the judgment of the Supreme Court in SC1000.
    
15. I am satisfied from material evidence before me including the statement that the requirements; that the decision sought to be reviewed is that of a public body or authority; that available administrative remedies have been exhausted; and that there has been promptness in instituting the proceedings, have been established.
    
16. I will now address the questions of whether or not the plaintiff has locus standi and an arguable case.
    
17. Does the plaintiff have locus standi? The originating summons and more particularly the statement do not indicate clearly in which capacity the plaintiff is suing the defendants. In the statement, he pleads at paragraph 1 as follows:
    

"The plaintiff is a member of the National Forest Board established under section 9 of the Forestry Act 1991 to carry out the functions and objectives, manage the affairs and exercise the powers of the Papua New Guinea Forest Authority established under section 5 of the said Act."

18. If the plaintiff has taken out these proceedings as a member of the National Forest Board, has he got the approval or authority of that Board? There is no material or evidence before me to suggest that he has obtained such approval.
    
19. I note from the plaintiff's affidavit that he is the President of the Association of Foresters of Papua New Guinea (Inc) which is registered under the provisions of the Associations Incorporation Act. The certificate of incorporation, a copy of which is annexed to the affidavit as annexure "A", shows that the Association was registered on 2 November 1989 and given registration number A.400. During submissions, Mr. Mann-Rai submitted that the plaintiff's membership to the Board is by virtue of section 10 (1)(d) of the Forestry Act because he is the President of that Association. I think that fact is not good enough. A resolution of the Association authorising the plaintiff to pursue these proceedings would have assisted me in my deliberations. That is not available.
    
20. What interest does the plaintiff have as a private citizen? Order 16 Rule 3 (5) states that the Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates. There is no material or evidence before me to suggest that he has. The plaintiff has no locus standi to file these proceedings.
    
21. Does the plaintiff have an arguable case? The grounds on which the application for leave is made are set out in the Statement and they are summarised as follows; first, the decision was made ultra vires as to the whole or in part on the basis that the NEC has no power at all under the Forestry Act 1991 to give directions contained in the decision and the decision was made without accompanying reasons or rational justification; second, the decision was based on a mistaken view of the law; third, the issues the subject of the decision are currently the subject of litigation before the National Court in proceedings instituted by OS No.329 of 2010 awaiting judgment to be delivered and the conduct of the First Defendants in making the decision constitutes an unlawful and an improper interference with the Court process; and fourth, denial of natural justice to the PNG Forest Authority.
    
22. All of these grounds call into question directly or indirectly the exercise of power conferred on the NEC under the Forestry Act in particular pursuant to Section 76 to issue directions in relation to any matter referred to it under Section 75 of the Forestry Act . These provisions state:
    

"75. Duties of Minister on receipt on final recommendation from the Board.

(1) Where the Minister accepts a final recommendation from the Board under Section 74, he shall invite the person with whom the Authority has entered into a project agreement under Section 72(1)(b)(i) to make an application under Section 77 and, within 30 days of a duly completed application being made, grant a timber permit to that person.

(2) Where the Minister does not accept a final recommendation from the Board under Section 74, he shall refer the matter, together with the recommendation of the Board and his reasons for not accepting it, to the National Executive Council.

76. National Executive Council to direct minister to accept or reject recommendation.

(1) The National Executive Council shall consider any matter referred to it under Section 75(2) and shall direct the Minister to—

(a) accept; or
(b) reject,

the project proposals.

(2) The Minister shall—

(a) comply with a direction under Subsection (1); and

(b) advise the Board of the direction; and

(c) where the direction is to accept the recommendation of the Board, proceed in the manner required by Section 75(1).

(3) In its direction to the Minister under Subsection (1), the National Executive Council may direct the Minister to comply with certain requirements it may impose.

(4) Where a direction under Subsection (1) is to reject the recommendation of the Board, the National Executive Council shall direct the Minister to refer the matter back to the Board for the Board either to—

• (a) renegotiate such terms and conditions in the project agreement executed under Section 72(1)(b)(i) as are specified by the National Executive Council as requiring renegotiation; or
  
• (b) re-advertise the forest development project under Section 64 and take action thereafter in the manner required under this Division."
  

23. I am satisfied that the arguable case requirement has been met.
    
24. One of the five requirements relevant for consideration in the exercise of the Court's discretion in determining an application for leave for judicial review has not been satisfied. So in the exercise of my discretion, I will refuse the application.
    
25. The formal orders of the Court will be that:
    
    1. The plaintiff's application for leave to seek judicial review of the decision of the NEC dated 15 February 2012 is refused.
       
    2. The plaintiff shall bear the defendants' costs to be taxed if not agreed.
       

Ruling accordingly.

______________________________________________________
Mann-Rai Lawyers: Lawyers for the Plaintiff
The Solicitor-General: Lawyers for the Defendants