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Medaing v Gabut [2016] PGNC 239; N6431 (6 July 2016)

N6431

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 334 OF 2016

BETWEEN

LOUIS MEDAING, FOR HIMSELF & ON BEHALF OF
MEDAING FAMILY OF TUGYAG VILLAGE &
SAWANG FAMILY OF PERENSI VILLAGE
Plaintiffs

AND
JOSEPH GABUT, BENEDICT BATATA, KUTT PAONGA, COMPRISING THE RAMU NICKEL/COBALT
SPECIAL LAND TITLES COMMISSION
First Defendants

AND
RAMU NICKEL/COBALT
SPECIAL LAND TITLES COMMISSION
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Madang: Cannings J
2016:6^th July

JUDICIAL REVIEW – application for leave to seek review of purported decision of Special Land Titles Commission to refuse to hear plaintiff’s claim for customary ownership of land – requirements for granting of leave –whether an arguable case exists – whether there has been undue delay.

The plaintiff applied in July 2016 for leave to seek judicial review of the purported decision of a Special Land Titles Commission made in January 2012 to refuse to hear the plaintiff’s claim to land, the customary ownership of which was being inquired into and determined by that Commission.

Held:

(1) There are five requirements for granting of leave to seek judicial review: (a) locus standi; (b) decision must be of a public body; (c) arguable case; (d) exhaustion of administrative remedies; (e) no undue delay.

(2) Two of the requirements were not met: (c) no arguable case; and (e) undue delay. Leave was accordingly refused.

Cases cited:

The following cases are cited in the judgment:

Medaing v Minister for Lands and Physical Planning (2010) N3917
Simon Mali v The State (2002) SC690
Tigam Malewo v Keith Faulkner (2009) SC960

Counsel:

L Medaing, the Plaintiff, in Person
S Maliaki ,for the Defendants

6^th July, 2016

1. CANNINGS J: Louis Medaing, the plaintiff, is seeking leave for judicial review of a purported decision of the Ramu Nickel Special Land Titles Commission, dated 19 or 20 January 2012, to refuse to hear the plaintiff’s claim to land, the customary ownership of which was being inquired into and determined by that Commission.
   
2. Apart from an assertion in his supporting affidavit that such a decision was made in January 2012 and that the Commission refused to hear his claim or that of his clan, the plaintiff has provided no evidence of such a decision actually being made. That is why it must be described as a purported decision.
   

PREREQUISITES

3. In determining whether leave should be granted, it is necessary to consider the five prerequisites for granting leave (NTN Pty Ltd v PTC [1987] PNGLR 70, Leto Darius v Commissioner of Police (2001) N2046, Louis Medaing v Minister for Lands and Physical Planning (2010) N3917), namely:
   • (a) Does the plaintiff have locus standi, ie a sufficient interest in the subject matter of the decision?
     
   • (b) Is the decision sought to be reviewed that of a public authority?
     
   • (c) Does the plaintiff have an arguable case on the merits?
     
   • (d) Have administrative remedies, if any, been exhausted?
     
   • (e) Has the application been made promptly without undue delay?
     

(a) Sufficient interest

4. It is clear that Mr Medaing has a sufficient interest in the proceedings. His interest is demonstrated adequately by his supporting affidavit, which gives an explanation of the background of his involvement in the matter. I take judicial notice of the grievances of Mr Medaing in relation to this land which have extended back at least to 2005 when he commenced the first proceedings of which I am aware. The general subject matter was his grievance regarding his family’s interest in the land at Basamuk. So the first requirement for leave for judicial review is satisfied.
(b) Public authority

5. This requirement is clearly met.

(c) Arguable case

6. There are problems in establishing this prerequisite. As Ms Maliaki for the defendants, pointed out, there is no clear evidence of the decision the plaintiff wants reviewed. So the arguable case requirement is not satisfied.
   

(d) Exhaustion of administrative remedies

7. I consider that judicial review is an appropriate avenue of complaint regarding the purported decision which the plaintiff is aggrieved about, ie the decision of the Special Land Titles Commission to refuse to register his claim. So that requirement is satisfied.
   

(e) Absence of undue delay

8. There has clearly been a considerable delay in making this application for leave. It is a delay of more than four years, from January 2012 to July 2016. There needs to be a very good explanation for such a prolonged delay. I am not satisfied with the plaintiff’s explanation. The decision he is concerned about is a decision he says was made on 19 and 20 January 2012. It was open to him to seek leave for judicial review of that decision, but he has not done that until 2016.
   
9. The plaintiff in 2013 and 2014 commenced other proceedings aimed generally at agitating the same grievance about his and his family’s interest in the land. He has always maintained that the land was unfairly and unlawfully acquired by the colonial administration in 1942 (Louis Medaing v Ramu Nico (MCC) Ltd (2014) N5525, Louis Medaing v The State (2014) N5848).
   
10. He commenced those proceedings of his own volition. He should have perhaps got better legal advice. But the fact is, for whatever reason, he has delayed the commencement of the present proceedings. There is not an adequate explanation for delay.
    
11. I also take into account that the Special Land Titles Commission proceedings have been completed, a long time ago, in August 2013. The National Court is now hearing appeals against the proceedings of the Commission. The fact is, Mr Medaing has left it too late.
    
12. He is not a stranger to the court. He is not someone who is completely ignorant of court proceedings. But even if I were faced with someone who had absolutely no idea about the Court, I would still not be inclined to disregard the delay. Everyone in PNG, unless they are completely uneducated and unsophisticated and live in a very remote location, is expected to know that if they want to bring court proceedings, they have to act rather quickly. If you leave proceedings too late in the day, you will always be accused of undue delay. Especially in a case such as this where things have moved along. It is now several years since the Special Land Titles Commission made its decisions. The Court will unless there are exceptional circumstances dismiss proceedings on the ground of undue delay.
    
13. I am being as fair as I possibly can be. I am almost obliged to dismiss the application for leave for judicial review. If I were to grant leave, I would be making a decision that I consider would be appealable. I would be letting the plaintiff continue and giving him false hope of having his grievance heard.
    

CONCLUSION

14. Two of the five criteria have not been satisfied so I will refuse the application for leave on these grounds:
    
    • the plaintiff has not shown that he has an arguable case;
    • there has been undue delay, without a proper explanation, in making the application for leave.
      

ORDER

(1) The application for leave to seek judicial review of the decision of the first and second defendants dated 19 and 20 January 2012 is refused.

(2) The entire proceedings are dismissed.

(3) The parties bear their own costs.

(4) The file is closed.

Judgment accordingly.
_____________________________________________________________
Solicitor-General: Lawyer for the Defendants