N6071

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 921 of 2014

BETWEEN:

TRISTA ABAIJAH in her capacity as surviving spouse beneficiary to the Estate of her late husband Francis D. Solien
First Plaintiff

AND:

FRANZUER W. SOLIEN in his capacity as biological son and beneficiary to the Estate of his late father Francis D. Solien
Second Plaintiff

AND:

NALI HOLE
Third Plaintiff

AND:

ALLAN MANA
First Defendant

AND:

PUBLIC CURATOR OF PAPUA NEW GUINEA
Second Defendant

AND:

JOHN DEGE – Managing Director National Housing Corporation
Third Defendant

AND:

NATIONAL HOUSING CORPORATION
Fourth Defendant

AND:

REGISTRAR OF TITLES – Department of Lands & Physical Planning
Fifth Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant
 
Waigani: Hartshorn J
2015: 16th June,
: 31st July

Application for Leave to Apply for Judicial Review

Cases Cited:
Papua New Guinea Cases

Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22 
Pora v. Leadership Tribunal [1997] PNGLR 1 
Nakun Pipoi v. Viviso Seravo (2008) SC909 
Zachary Gelu v. Sir Michael Somare (2009) N3647 
Alois Kingsly Golu v. National Executive Council (2011) N4425 
Albert Schram v. Phillip Stagg (2012) N4892

Overseas Cases

Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 
 
Counsel:

G. Konjib and F. Tavui, for the First and Second Plaintiffs
D. Mamu, for the Third Plaintiff
A. Mana, in person
E. Manihambu, for the Sixth Defendant

31st July, 2015

1. HARTSHORN J: The three plaintiffs apply for leave to apply for judicial review. The decision sought to be reviewed is of the National Housing Corporation (NHC) and its Managing Director to sell a property described as Allotment 8 Section 72 Boroko (Property) to the first defendant on 24th June 2013 and then to have the said property registered to the first defendant on 4th July 2014.

2. The plaintiffs claim amongst others that the first defendant obtained title to the Property by fraud.

Background

3. The first and second plaintiffs claim that the Property had been purchased by their late husband and father (deceased) from the predecessor to the National Housing Corporation. The deceased was a tenant of the Property and purportedly purchased it in a Government Sales Scheme. The deceased did not leave a will. The first and second plaintiffs claim that they have legal and equitable interests to the Property by virtue of being the deceased's next of kin.

4. The third plaintiff purportedly purchased the Property from a brother of the deceased in April 2013 and claims that she has a superior title to the Property than the first defendant.

This application

5. Notwithstanding that an application for leave for judicial review is to proceed ex parte pursuant to Order 16 Rule 3 (2) National Court Rules, I permitted the first defendant upon his application to make submissions but on matters of law only. In permitting the first defendant to make submissions, I had recourse to the decision of Batari J in Albert Schram v. Phillip Stagg (2012) N4892.
6. Submissions were also made on behalf of the State, the sixth defendant pursuant to s. 8 Claims By and Against the State Act.

7. An application for leave for judicial review involves the exercise of discretion. The discretion must be exercised judicially. The court should be satisfied that the applicant has sufficient interest, that the application is brought without delay, that any other statutory or administrative remedies that the applicant may have are exhausted and that the applicant has an arguable case.

8. As to what is required in an application for leave, in the Supreme Court case of Pora v. Leadership Tribunal [1997] PNGLR 1, Kapi DCJ (as he then was) stated that the true nature of an application for leave was as set out by Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 644: 

"If, on a quick perusal of the material 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 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 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". 

This passage was adopted in Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22. 

9. I now consider whether the plaintiffs have sufficient interest or standing.

Sufficient interest
10. The first and second plaintiffs submit that they have a sufficient interest on the basis of being beneficiaries to the intestate estate of the deceased. They referred to evidence from the Public Curator's Office that they are owed entitlements from the deceased's estate.

11. The third plaintiff claims that she has a sufficient interest on the basis of purchasing the Property and obtaining title to the Property from John William Ford who was the registered proprietor of the Property.

12. The State submits that the first and second plaintiffs do not have sufficient interest as:

a) there is no evidence that title to the Property was ever transferred to the deceased. Consequently he did not have an indefeasible title to the Property that could be transferred to the first and second plaintiffs; 

b) the first plaintiff pleaded guilty and was convicted of obtaining goods by false pretence under s. 404 (1) (a) Criminal Code. This conviction concerned the first plaintiff falsifying a contract of sale and having the title to the Property transferred to the second plaintiff when he was 12 years of age. Consequently submits the State, the first plaintiff does not come to court with clean hands and is therefore not entitled to claim equitable relief including in respect of her purported equitable interest in the Property.

c) as to the second plaintiff, in a previous National Court decision in proceeding WS 1110/12, Waigani, the Court found that NHC is registered as the title holder to the Property, that state leases purportedly held by the second plaintiff in this proceeding and John William Ford for the Property had been cancelled by the Lands Department and that the second plaintiff's claim to the title to the Property clearly had no foundation. In WS 1110/12, the second plaintiff in this proceeding had claimed title to the Property. After considering evidence filed by NHC, the Court noted that the second plaintiff's pleaded cause of action no longer had any basis and invited the second plaintiff to amend his statement of claim by a certain time to plead a proper cause of action. The second plaintiff did not amend his statement of claim and WS 1110/12 was dismissed for being frivolous and vexatious. That decision has not been set aside or appealed. Consequently, the second plaintiff is estopped from asserting a right to the Property because of this decision and also as he failed to amend his pleading to plead any entitlement to the Property.

13. The State submits that the third plaintiff does not have sufficient interest as the title she purportedly purchased for the Property was a fraudulent title and this is conceded by the third plaintiff. The third plaintiff does not have any legal or equitable interest in the Property as she did not in fact purchase the title to the Property. Any cause of action that the third plaintiff may have as to being sold a fraudulent title is against John William Ford and not against the defendants.

Consideration

14. Order 16 Rule 3 (5) National Court Rules provides 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."

15. In Nakun Pipoi v. Viviso Seravo (2008) SC909 the Court said at para 23:

"The principle is that the Court shall not grant leave unless it is satisfied that the applicant has sufficient interest in the subject matter. The law is succinctly set out by Wilson, J in NTN Pty Ltd v. Board of Post & Telecommunication Corporation & Ors [1987] PNGLR 70. At 74 His Honour said:

"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)."

16. In Alois Kingsly Golu v. National Executive Council (2011) N4425, Gavara Nanu J said at para 6:

"First the plaintiff must show that he has sufficient interest in the decision vis., he must show that he is grieved (sic) by the decision and that the decision affects his rights and interests."

17. As to whether the first plaintiff has a sufficient interest, the first plaintiff in her evidence acknowledges that the deceased while purportedly participating in a Government Sales Scheme, "whilst waiting" died intestate in 1998. Also, counsel for the first and second plaintiffs conceded that title to the Property had not been issued to the deceased.

18. There is no evidence that the Property was owned by the first plaintiff and the deceased as joint tenants. Therefore any claim by the first defendant to the Property is as a beneficiary of the deceased's estate. It is for the executor or administrator of the deceased's estate to bring any proceeding on behalf of the estate in respect of rights of the deceased to property. A beneficiary does not have the right to sue on behalf of an estate. 

19. In this instance the Public Curator, in whom the estate of the deceased vested upon his death, has given notice that he declines trust of the deceased's estate pursuant to s. 8 (2) Public Curator Act. The Public Curator has further informed the lawyer for the first and second plaintiffs that he is at liberty to request the Public Curator's consent under s. 9 (2) Public Curator Act to apply for Letters of Administration on behalf of his clients. 

20. There is no evidence that the Public Curator has given his consent to either or both of the first and second plaintiffs to bring a proceeding on behalf of the estate of the deceased. Further, there is no evidence that either or both the first and second plaintiffs have been appointed administrator of the deceased's estate. Consequently, as the first defendant does not have authority to sue on behalf of the deceased's estate and any right that she may have in respect of the Property is merely as a beneficiary, I am not satisfied that the first plaintiff has shown that she has a sufficient interest, in that she is aggrieved by the decision for which leave is sought, as that decision affects her rights and interests. Given this finding it is not necessary to consider the other submissions of counsel on this point.

21. As to the second plaintiff, in respect of any right that he may have to the Property as a beneficiary, my above comments in respect of the deceased's estate apply in equal measure. In addition, another National Court has determined that his claim to the Property was frivolous and vexatious. Further, the second plaintiff did not amend his claim as to his entitlement to the Property when invited to do so. Consequently he is estopped from asserting his right to the Property. Given this I am not satisfied that the second plaintiff has shown that he has a sufficient interest, in that he is aggrieved by the decision for which leave to review is sought, as that decision affects his rights and interests.

22. As to the third plaintiff, her counsel in reply conceded that the third plaintiff does not have sufficient interest. This was a correct concession given that the third plaintiff in evidence states that Mr. Ford "tactically" misrepresented that he was the legal proprietor of the Property and in essence that the title purportedly purchased was not Mr. Ford's to sell. Consequently, the third plaintiff does not have a sufficient interest as it has not been shown that she is aggrieved by the decision for which leave to review is sought, as that decision affects her rights and interests.

23. Consequently, as none of the plaintiffs have a sufficient interest pursuant to Order 16 Rule 3 (5) National Court Rules this application for leave should be dismissed.

24. If however the plaintiffs do have sufficient interest, the next consideration is whether there has been undue delay in making the application.

Delay

25. Counsel for the plaintiffs submitted that there was no delay in commencing this proceeding and that s. 33 (1)(a) Land Registration Act provides for a title to be overturned if fraud is proved.

26. Order 16 Rule 4 National Court Rules provides that amongst others, where there has been undue delay in making an application for judicial review or in the case of an application for an order of certiorari, after four months, the Court may refuse to grant leave for the making of 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.

27. In this instance the plaintiffs in paragraph 7 of their amended originating summons, seek amongst others:

 "An order in the form of writ of certiorari to squash (sic) the decision by the Third and Fourth defendants in selling the said Property to the First Defendant dated 14. 05. 2013 which decision led to unlawful settlement…… on 24. 06. 2013 and which decision was vetted through WS 1076 of 2014…. and Orders made by Justice Sakora on the 15. 10. 2014……."

28. The plaintiffs, if I understand correctly, submit that because they had commenced proceeding WS 1076/14 in respect of the same matter, and Justice Sakora made Orders on 15th October 2014, the time by which this proceeding should have been filed, should run from 15th October 2014 and not 14th May 2013 or 24th June 2013.

29. As to the first and second plaintiffs, they are not parties to WS 1076/14. Consequently the time by which they should have commenced this proceeding should be from at least 24th June 2013. That is about one year and six months until the originating summons was filed. That is also 4 and one half times the permitted time of four months in Order 16 Rule 4 National Court Rules. There is no explanation by the first and second plaintiffs for the delay. Even if the date from when the originating summons is to be filed is calculated from the date of registration of the first defendant as the title holder of the Property, being 4th July 2014, the originating summons was still filed over five months later - more than the period of four months stipulated in Order 16 Rule 4 (2) National Court Rules.

30. Further, in considering the question of delay in this instance, in my view the court is entitled to take into consideration that although the decision sought to be reviewed occurred in June 2013, this application is made in circumstances where the alleged entitlement of the first and second plaintiffs to the Property is as a consequence of the deceased's death – over 16 years ago.

31. Given this and as the application for leave has been made as I have described, in my view the granting of the relief sought would be detrimental to good administration. In this regard I refer to my decision of Zachary Gelu v. Sir Michael Somare (2009) N3647 and the comments contained therein concerning the necessity for judicial review proceedings to be disposed of expeditiously. This applies equally to the commencement of judicial review proceedings and an application for leave. In the absence of any explanation for the delay in commencing this proceeding, the application for leave of the first and second plaintiffs should be refused for the reasons given.

32. As to the third plaintiff, to my mind, that the subject matter of this application was being considered in another proceeding and then it was decided judicial review proceedings were appropriate, is not a valid reason to delay the requirements of Order 16 Rule 4 National Court Rules. Counsel for the third plaintiff should have known that the third plaintiff's claim should have been dealt with under Order 16 National Court Rules. Consequently for the reasons that I have given in respect of the first and second plaintiffs in paragraph 29 above, the third plaintiff's application should be refused.

33. For the above reasons, this application for leave to judicially review should be refused. It is not necessary to consider the other submissions of counsel.

Orders

34. The Orders of the Court are:

a) This application for leave to apply for judicial review is refused.

b) Time is abridged

____________________________________________________________
Konjib & Associates Lawyers: Lawyers for the First and Second Plaintiffs 
Haiara's Legal Practice: Lawyers for the Third Plaintiff 
Allens: Lawyers for the First Defendant 
Office of the Solicitor General: Lawyers for the Sixth Defendant