N6554

PAPUA NEW GUINEA
[In the National Court of Justice]

OS No. 387 of 2015

	Between:	
KEVIN RARUA for himself and all direct descendants of GAIGO RESENA (dec’d) of NAURINA Clan, TATANA Village.
Plaintiffs

And:
BENEDICT OKINA BATATA – a/Chief Commissioner sitting as Land Titles Commission at Waigani, NCD
First Respondent

And:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Second Respondent

And:
NICKY ALLAN
Third Respondent

Waigani: Gavara-Nanu J.
       2016: 18th & 29th August

JUDICIAL REVIEW – Power of the Court to review – Constitution; s.155 (3) – Inherent power – Statutory appeal period lapsing – Land Titles Commission Act, 1962;  s. 38 (1) – Land Titles Commission a judicial authority – Decision of the Land Titles Commission – Appeal under s.38 (1) of the Land Titles Commission Act, not mandatory – Judicial Review appropriate.

Cases cited
Anton Lavu v. Nicholas Mark Thompson (2007) N5018
Innovest Ltd v. Hon.Patrick Pruaitch & The State (2014) N5949
Lohia Sisia as representative of Varimana clan [1987] PNGLR 102
Parker v. Virobo Morea [1971 – 72] PNGLR 162; N625
Sao Gabi & The State v. Kasup Nate and Others (2006) N4020
The Independent State of Papua New Guinea v. Mt Hagen Township & Others (2004) N2918
The Independent State of Papua New Guinea v. Boyamo Sali v.Western Highlands Province v. Independent State of Papua New Guinea (2006) N3068
                               
Counsel:
K. Rarua, In Person
A. Assan, for the third Respondent 
I. Mugugia, for the second Respondent
	
29th August, 2016	

1.	GAVARA-NANU J:  	This is an application by the third respondent made pursuant to a notice of motion filed on 25 May, 2016, seeking orders to summarily dismiss the proceeding on the ground that it is statute barred. This is the principal relief purportedly sought under to s. 38 (1) of the Land Titles Commission Act, 1962. 

2.	The application also seeks two alternative reliefs. First, that the proceeding should be summarily dismissed on the ground that the plaintiffs lack standing. Second, that the proceeding should be summarily dismissed under Order 12 r 40 of the National Court Rules (NCR), in that it is frivolous or vexatious and an abuse of process. 

3.	All the reliefs sought raise the issue of jurisdiction. 

4.	This application is based mainly on the principal relief. I propose to deal firstly with the two alternative reliefs because they are quite straight forward and easy to dispose of.  

5.	In regard to the first alternative relief; the issue has already been decided at leave stage when the Court found that the plaintiffs had sufficient interest to bring the proceeding.  The relief is therefore misconceived and is dismissed. In regard to the second alternative relief, I find that this relief is also misconceived because the Court has already found at leave stage that there are serious issues to be tried.  In my view once the Court made such finding, the proceeding is competent and should proceed to trial. In any event, no issues were raised at leave stage regarding the competency of the proceeding. This relief is therefore also dismissed: Innovest Ltd v Hon. Patrick Pruaitch and the State N5949. 

6.	In regard to the issues regarding the alleged defects in the pleadings which the applicant also raised, they should have also been raised at the leave stage it is too late to raise them at this late stage of the proceeding. The proceeding has already reached the stage where parties have filed affidavits touching on substantive issues for trial. The relevant Directions have also been issued for the preparation of documents for the Review Book, including the Index. The Statement of Agreed and Disputed Facts and Legal Issues to be tried has also been settled, filed and served. So the competency of the proceeding really is not an issue. 

7.	I turn now to the principal relief which raises the issue of statutory time bar under s.38 (1) of the Land Titles Commission Act. This Sub-section provides that a person aggrieved by a decision of the Land Titles Commission “may” appeal to the National Court within 90 days after the decision or the review of the decision. 

8.	The application for judicial review was filed one day outside the statutory appeal period of 90 days. The applicant argued that the proceeding is therefore statute barred and is incompetent. The applicant also argued that the proceeding is incompetent because the process invoked to bring the proceeding is wrong because the Act provides that a decision of the Land Titles Commission “may” be challenged by an appeal not by judicial review. 

9.	Under s.38 (1), challenging a decision of the Land Titles Commission by way of an appeal is not mandatory, because an appeal is not the only mode by which such decision can be challenged because of the use of the word ‘‘may” in the Sub-section. Section 38 (1) is in these terms:

Division 3.—Appeals to National Court.

38.	Right of appeal.

(1)	A person aggrieved by a decision of the Commission, whether after review under Division 223 of this Part or otherwise, may appeal to the National Court within 90 days after the decision or the review of the decision.

10.	It is not disputed that the application for judicial review was filed a day outside the 90 day statutory period. But, quite plainly this application is misconceived because the plaintiffs have applied for a judicial review, they are not appealing. So the statutory appeal period of 90 days under s. 38 (1) has no relevance and it does not apply. Nonetheless, s. 38 (1) which is an express appeal provision still need to be read subject to s.155 (3) of the Constitution which confers inherent power on the Court to review any exercise of power by a judicial authority, because of the word “may” used in the Sub-section (s. 38 (1)). See, Sao Gabi & the State v Kasup Nate and Others (2006) N4020. The Land Titles Commission is a judicial authority, and therefore its decisions are amenable to judicial review. See, Parker v Virobo Morea [1971-72] PNGLR 162 (N625) and Anton Lavu v Nicholas Mark Thompson (2007) N5018. For the purposes of this case, it is important to appreciate that the National Court’s inherent power to review under s.155 (3) is regulated by s.38 (1) of the Land Titles Commission Act, by virtue of the word “may” used in the Sub-section. The language of the Sub-section inferentially grants a person aggrieved by a decision of the Land Titles Commission an option to either appeal the decision or to apply for a judicial review of the decision.  A classic example where Commission’s decisions may be reviewed is where the appeal period under s. 38 (1) has lapsed as in this case.  In such cases the Court’s inherent review jurisdiction may be invoked as happened here. 

11.	A quick survey of cases similar to this case also shows that persons aggrieved by decisions of the Land Titles Commission have sought review of such decisions e.g. The Independent State of Papua New Guinea v Mt Hagen Township & Others (2004) N2918; Western Highlands Province v The Independent State of Papua New Guinea (2006) N3068 and The Independent State of Papua New Guinea v Boyamo Sali v Lohia Sisia as representative of Varimana clan [1987] PNGLR 102. The last of these cases which was decided by the Supreme Court is a case in point; the President of the Court Bredmeyer J, with whom the other two members of the Court, namely Cory and Barnett JJ agreed, succinctly stated the principle this way: 

“The Courts have enormous power under s.155 to review the decision of any Minister, tribunal or court. In exercising that power we can ignore any time limits on appeal or review by statute and statutory ouster provisions excluding review or appeal of which there are many” (my underlining).

12.	The Court can therefore review the Commission’s decision pursuant to the dictates of s. 38 (1). If I dismissed the proceeding as urged by the applicant, it will mean the plaintiffs have to start all over again by filing an application to appeal out of time, which would of course be subject to normal processes of the Court. I do not think adopting such a course is fair to the plaintiffs given that the parties have progressed the case thus far and in that regard the applicant does not come to this Court with ‘clean hands’. It would also be futile for the plaintiffs to file an application to appeal out of time because the respondents will I am sure oppose it, thus further denying the plaintiffs’ right to challenge the decision. Such a course is clearly not in the interest of justice nor is it in the interest of the public. The Court may in the exercise of its discretion extend time to appeal if there was no adverse title registered, in this case though another title has already been registered under someone else’s name. It follows that no exceptional grounds arise either under s. 38 (1AA) or even (1AB) of the Land Titles Commission Act, upon which this Court can grant extension of time for the plaintiffs to appeal.   

13.	Furthermore, most if not all the issues raised in this application are matters for substantive hearing. And there are special circumstances which warrant judicial review. For example the respondents, including the applicant have endorsed the Statement of Agreed and Disputed Facts and Legal Issues to be tried and have endorsed the Index to Review Book. Therefore they have by their own conduct agreed to progress the case to trial, and essentially all that is remaining for the parties to do is to compile the Review Book, have it certified and filed and obtain a trial date.
                                                                                                                     
14.	For these reasons, the application is dismissed with costs. 

________________________________________________
In person:                Lawyers for the plaintiff 		 	
Raurela Lawyers:    Lawyers for the third respondent 	
Solicitor General:    Lawyers for the second defendant