N6937

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 655 OF 2017

BETWEEN:
AGRICULTURE RESOURCES TECHNOLOGY LIMITED
Applicant

AND:
RAY-PAUL, COMMISSIONER OF CUSTOMS
First Respondent

AND:
FRANK BABAGA, ASSISTANT COMMISSIONER OPERATIONS
Second Respondent

AND:
PAPUA NEW GUINEA CUSTOMS
Third Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Kokopo: Anis AJ
2017: 26 September & 10 October

JUDICIAL REVIEW – Application for leave to apply for judicial review - Order 16 Rule 3(2) of the National Court Rules - originating summons- common ground on sufficient interest - contests on undue delay, exhaustion of administrative remedy and arguable case - court's power discretionary - no valid grounds of review pleaded - pleaded grounds for review vague and frivolous - the two (2) grounds for review argued "natural justice" and "error of law" at hearing not pleaded in the Statement - the two (2) grounds for review raised at hearing contrary to prima facie evidence and pleading in the Statement

Cases cited:

Ex parte Application of Eric Gurupa (1990) N856
In the matter of the Ex-pare application of Poka Biki [1995] PNGLR 336
Paul Asakusa v. Andrew Kumbakor (2009) N3303
Stanley Billy v. Gari Baki (2011) N4509
Pombros Maliu v. Samuel K Geno (2013) N5144
Rabaul Shipping Ltd v. Captain Nafizul Hussain and Ors (2017) N6644
Mision Asiki v. Manasupe Zurenuoc (2005) SC797
Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479

Counsel:

Ms Marubu, for the Plaintiff
Ms E Takoboy, for the First, Second, Third & Fourth Respondents

RULING

10th October, 2017

1.	ANIS AJ:	I rule on the applicant's application for leave to apply for judicial review.  The application was made on 26 September 2017, under an originating summons filed on 16 August 2017.  The State appeared and objected to the application.  I heard submissions from the parties on that day and reserved my ruling to a tentative date at 9:30am on 3 October 2017.  The matter was called on that day.  My decision was not ready by then so I adjourned the matter to a date to be advised.  Parties have been advised that the decision is ready for deliberation today.

Decision for review

2.	The decision the applicant intends to review is pleaded as the first relief in the originating summons.  It reads:

Leave of the Court pursuant to Order 16 Rule 3 of the National Court Rules to apply for judicial review of the decision of the Assistant Commissioner of Operations of the Office of PNG Customs Services the second defendant in this proceedings made on the 10th of May 2017 to dispose of the Plaintiff’s containers as per the Customs Act 1951.
Relevant background

3.	The applicant imported agricultural related materials or goods in thirty (30) containers, which arrived in December 2013.  Fourteen (14) of the containers were cleared by the third respondent.  The remaining sixteen (16) containers, containing bungalows or ready-made kit houses (imported goods), were not cleared because the applicant did not pay their import duty tax.  Because of that, the imported goods were ceased by the third respondent on 6 October 2014.  The applicant, through its then lawyers Peri Lawyers, challenged the seizure soon after by correspondence on 15 October 2014.  The third respondent responded soon afterwards and advised the applicant that a security guarantee would be required for the release of the seizure goods.  The applicant to date has not given the required security.  

4.	Prima facie evidence shows that the applicant had obtained support from various State agencies earlier in 2013 to exempt its imported goods from import duty.  The exemption request was primarily based on an earlier National Executive Council (NEC) decision, number 88/2007.  The NEC decision was made on 14 March 2007.  It was widely known then as the Green Revolution Policy.  The policy was said to have tax exemption provisions for imported agricultural goods or materials.  The policy, however, was never sanctioned or passed as a law as intended.  

5.	The applicant's various attempts to seek support from the State entities and in the recent times to seek the NEC's endorsement for specific exemption for its imported goods, did not succeed.  Prima facie evidence shows that that process, which is, waiting for the NEC to make a decision to exempt the applicant's imported goods from tax duty, may still be pending.

6.	The applicant came to this Court after it had received an email correspondence dated 10 May 2017 from the third respondent.  In the email, the third respondent advised the applicant that it was auctioning the seized imported goods.  That is the decision which the applicant now seeks leave of the Court to review.

Issues

7.	The issues are as follows:

(i)	Whether the application was commenced within reasonable time?
(ii)	Whether the applicant has an arguable case for judicial review; and
(iii)	Whether the applicant has exhausted all other administrative remedies.

8.	I note that the State did not challenge the question of whether the applicant has sufficient interest.  The State has conceded in its submission that the applicant has sufficient interest.  For the record, I find that the applicant indeed has a sufficient interest in the matter.  The third respondent plans to tender by public auction the seized imported goods, which were imported by the applicant.  The applicant is unhappy with the decision and now intends to challenge it.

When was the decision made?

9.	The State, in my view, makes an interesting but valid argument under this sub-heading.  Counsel submits that the decision to publicly auction the imported goods was not made on 10 May 2017 as claimed by the applicant, but rather much earlier in 2016.  Counsel referred to a letter dated 5 September 2016 by the third respondent to the Secretary for the Department of Trade, Commerce & Industry.  The letter is in evidence and reads in part as follows:

Request release of detained containers based on Guarantee for facilitating an NEC Submission for Import Duties Exemption for Agriculture Resource Technology (ART) Project.

I refer to your letter dated 16 May 2016 relating to the above mentioned.  My sincere apologies for the prolonged delay in responding to your letter.

The situation with this import is that, there was and still is no legal basis for PNG Customs Service to waive the import taxes applicable.

The goods were imported in December 2013 and the assessed duties and taxes were not paid which deemed the goods abandoned and such were seized by Customs on 6th October 2014.  ART through its lawyers Peri Lawyers disputed the seizure, laying claim on the seized goods in a letter dated 15 October 214.

PNG Customs Service responded by informing the importers that a monetary security guarantee is required for the release of the seized containers.  No action from the importers was received to date.  The goods have been seized by Customs and are now forfeited to the state and will be disposed of by Customs to settle all cost incurred while the goods have been in storage.

As stated earlier PNG Customs Service has no legal basis to waiver and duties and taxes applicable on imported containers and will be taking action to dispose of the goods to recover the revenue lost and the settlement of any cost incurred whilst the goods were in our custody.  The goods will be disposed of by tender and PNG Customs may consider the tender bid importer.

Should you have any queries, .....

10.	I note that the decision being challenged by the applicant, as pleaded in the originating summons, was said to have been made on or about 10 May 2017.  It is evident in the email dated 10 May 2017, which I have referred to above in my judgment.  The email is in evidence and was sent by the third respondent's employee Frank Babaga to the applicant's agent Geoffrey Stephenson.  It reads in part as follows:

Thank you for your email.  I note the attached letter to the Chief Commissioners from the NEC Secretary dated 30 October 2014.  To date we have had no response from NEC or Treasury and after more than two years with no instruments to legally waiver any taxes applicable on the consignment.  PNGCS is exercising its powers under the Customs Act to dispose of the goods.  The disposal of the goods as per the Customs Act will proceed as planned by our Islands Regional Office.  

11.	In my view, to determine the question under this sub-heading, I must briefly consider sections 126, 127 and 127A(1) of the Customs Act Chapter No. 101 (Customs Act).  I set them out in part herein:

126.	Notice of seizure.

(1)	Where a conveyance or goods have been seized as forfeited, the seizing officer shall give written notice of the seizure, and the cause of it, to the owner of the conveyance or goods, or if the owner cannot be identified after reasonable inquiry, on the person who was in possession or who was in control of the conveyance or goods when they were seized, by delivering or transmitting the notice to him—
(a)	personally; or
(b)	by post and addressed to him at his last-known place of abode or business.

(2)	The conveyance or goods seized—
(a)	shall be deemed to be condemned; and
(b)	may be sold by the Collector, unless the person from whom it or they were seized, or the owner, gives, within 30 days after the date of the seizure, written notice to the Collector at the nearest port that he claims it or them.

127.	Return of seized goods on security. 

(1)	The Commissioner General or the Collector may authorize any ship, boat, aircraft or goods seized to be delivered to the claimant on his giving security.
(2)	The security given to the Commissioner General or the Collector shall be in the form of cash or by bank guarantee.
(3)	The amount of the security shall be an amount equal to the value of the items seized, as determined by the Commissioner General or the Collector, plus freight and insurance costs incurred in their transport to Papua New Guinea, plus the amount of any duty of customs or excise and any Goods and Services Tax payable on their importation.
(4)	The question as to whether the value, determined by the Commissioner General or the Collector under Subsection (3), of items seized, is fair and accurate, is non-justiciable.

127A.	Disposal of seized goods on refusal to provide security. 

(1)	Where a claimant refuses to give security as required by the Commissioner General or Collector under the provisions of Section 127, in respect of any ship, boat, aircraft or goods seized, the Commissioner General may sell the ship, boat, aircraft or goods seized by public auction and shall—

(Underlining is mine)

12.	The applicant herein pleads in its Statement filed under Order 16 Rule 3(2)(a) of the National Court Rules (Statement) as well as in its evidence, that the notice of seizure had been issued in 2014.  In its supporting evidence and by that I refer to the affidavits of Theodore Yawanis and Geoffrey Stephenson, filed on 16 August 2017 and 31 August 2017 respectively, the applicant said that the goods were seized on 6 October 2014.  Mr Stephenson is the Managing Director of the company Customs Management Services Limited.  The company had been engaged by the applicant as its shipping agent to administer the applicant's imports namely the thirty (30) containers in 2013. At paragraph 6, Mr Stephenson said and I quote:  Since that time assessment was made and became due the Plaintiff did not pay the duty and I am aware a Seizure Notice was issued on the 16 containers by the Third Defendant.  Under paragraph 7(e) of the Statement, the applicant pleads and I quote, As a result of the Plaintiff not paying the duty within the required time a seizure notice was issued by the Third Defendant sometime in 2014.  And at paragraph 7(m) of the Statement, the applicant continues, Furthermore, since the issuing of the seizure notice in 2014 by the Third defendant the third defendant has failed to duly and diligently deal with the seized goods within reasonable time. 

13.	I note that I have taken the applicant's counsel to task at the hearing after counsel had submitted that it was not known whether the notice of seizure was ever issued.  I recall pointing out to counsel of the applicant's prima facie evidence and pleading whereby they have clearly stated otherwise as I have also highlighted above.  I noticed at the hearing that counsel appeared to make submissions outside the confines of the applicant's prima facie evidence and pleading.  

14.	The decision to sell the goods by public tender firstly became available by operation of law under section 127A(1).  When the applicant had refused to pay the import duty in 2014, and I note that this fact is not disputed in the prima facie evidence and in the pleading, the third respondent was at liberty from that time onwards to exercise its power under section 127A(1).  The applicant's reason for not wanting to pay the import duty was that it had hoped that the NEC's Green Revolution Policy would be passed into law whereby its imported goods would qualify as exempted goods from import duty tax.  In the alternative, the applicant was also waiting for a submission, which it had presented to the NEC for specific exemption over the imported goods.  So since 2014, the third respondent, pursuant to section 127A(1) was entitled to exercise its power to auction the seized imported goods.  Prima facie evidence shows that the third respondent had assisted the applicant to see if an exemption would be granted by the NEC.  This explains why the third respondent did not rush in to take any action under section 127A(1) since 2014.  But since nothing meaningful has materialised, the third respondent it seems has decided that ample waiting time had been given to the applicant and that it was perhaps time to move on.  Again, there is prima facie evidence and pleading backing up these facts.

15.	I now come to the crucial point.  The power of the third respondent to auction the goods under section 127A(1) is discretionary.  Section 127A(1) reads in part that if the claimant refuses to give security for the goods, the Commissioner General may sell the ship, boat, aircraft or goods seized by public auction.  Referring back to the decision being challenged, it reads in part, PNGCS is exercising its powers under the Customs Act to dispose of the goods.  The disposal of the goods as per the Customs Act will proceed as planned by our Islands Regional Office.  It would seem from reading the said email that the third respondent has already or was about to exercise its discretionary power to auction the seized goods   And that is the decision that is being challenged by the applicant, that is, the decision to auction the goods.  I am therefore satisfied that there is prima facie evidence that the third respondent has recently made its decision to auction the goods as reflected in the email of 10 May 2017.  The applicant obviously could not be in position to know the exact date.  That may not be difficult to obtain later if I am minded to grant leave to apply for judicial review.  I say this because the duty to provide evidence or a copy of the actual decision is bestowed upon the respondents to disclose to the Court ( See Order 16 Rule 13(7)(2) of the National Court Rules).

16.	What do I make of the letter of 5 September 2016?  The State submits that the letter constitutes evidence that the applicant was aware of the third respondent's decision made under section 127A(1) to auction the goods as of that date.  I reject the State's submission on two (2) basis.  Firstly, I accept the applicant's submission that the letter was not addressed to the applicant and as such there is no evidence disclosed to say when the applicant may have come across it.  Secondly, the letter ends with the following and I quote, The goods will be disposed of by tender and PNG Customs may consider the tender bid importer.  That to me suggests that the Commissioner General or the third respondent did not yet exercise the discretion under section 127A(1) but that it was going to do so in some point in time.

17.	It is reasonable therefore to assume for this purpose that the third respondent may have exercised his discretion to auction the goods under section 127A(1) sometime between September 2016 and May 2017.  

Delay

18.	One of the applicant's proposed primary relief is an order for certiorari.  This of course draws this Court's attention to the four (4) months time limitation period that is required of an applicant who is applying for leave for judicial review.  The relevant provision of course is Order 16 Rule 4 of the National Court Rules.  It states and I quote in part:

4.	Delay in applying for relief. (UK. 53/4)

(1)	Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant-
(a)	leave for the making of the application; or
(b)	any relief sought on 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.
(2)	In the case of an application for an order of certiorari to remove any judgement, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.

19.	My earlier findings of course are relevant to the issue of delay. 

20.	I compute time of when the decision was made by the third respondent to auction the goods to be on or about May 2017.  I also find that if the decision had been made earlier, the applicant may not have known about it until later on or about May of 2017.  The applicant's originating summons for leave to apply for judicial review was filed on 16 August 2017.  About three (3) months had passed before the applicant filed this proceeding.  I find that there was no delay by the applicant in applying for judicial review.  (see cases: Ex parte Application of Eric Gurupa (1990) N856; In the matter of the Ex-pare application of Poka Biki [1995] PNGLR 336). 

Arguable case

21.	Let me now address the next issue, that is, arguable case.  I refer to the proposed grounds for review in the Statement.  They are contained at paragraph 7.  I note that I have expressed my concern to counsel regarding these so-called grounds for review, at the hearing of the matter.  I informed counsel that the applicant did not plead a valid ground for review in the Statement.  I said the 'grounds' looked more like background information, narrative or submissions and that they appeared vague.  I informed counsel that the grounds ought to have been clearly pleaded in the Statement.  The case law on point is settled and I now have the benefit of citing them.  Case law requires that proposed judicial review grounds must be recognised by law.  It also requires that they must refer to the statutory provision or common law duty that is alleged to have been breached.  I refer to the following cases on point:  Paul Asakusa v. Andrew Kumbakor (2009) N3303; Stanley Billy v. Gari Baki (2011) N4509; Pombros Maliu v. Samuel K Geno (2013) N5144 and Rabaul Shipping Ltd v. Captain Nafizul Hussain and Ors (2017) N6644.   In the case of Dominic Philip v. The National Education Board (2008) N4024, the Deputy Chief Justice Salamo Injia, as he then was, now the Chief Justice, said and I read: 

The relief sought and the grounds relied upon must be properly and sufficiently pleaded in the Statement filed under O16 r 3; they must relate to established and recognized grounds of review at law.  The material or evidence relied on must relate to and be relevant to those grounds as expressly pleaded.

22.	In response, Counsel stated two (2) grounds for review, namely, right to 'natural justice' and 'error of law'.  This is also covered in the applicant's written submission.  But I note during the trial that counsel had had difficulty, upon my request, to link or match the two (2) grounds submitted to any of the 'grounds' that were pleaded in the Statement.  I cannot find the grounds, natural justice and error of law, pleaded as grounds for review in the Statement.  The prima facie evidence and the pleading also do not raise them as matters that would require determination.

23.	The other rational difficulties I have concerning counsel's submission on the two (2) grounds are these.  Firstly, the decision the applicant wishes to review is the discretionary exercise of power by the third respondent under section 127A(1) of the Customs Act, to publicly auction the seized imported goods.  There is no provision in section 127A(1) that says that before the third respondent decides to exercise its power to auction the goods, that it is required to give the applicant the right to be heard or have a say.  I have already covered section 127A(1) above in my judgment.  The only prerequisite before the third respondent could exercise its discretionary power is failure by a claimant to give security.  The applicant does not dispute that it had failed to give security in its prima facie evidence and pleading.  The second point I wish to make is this.  In regard to the second purported ground 'error of law', counsel submits that the notice of seizure under section 126 was not issued or that it is not certain whether such a notice was ever issued.  I reject this submission.  Firstly, that allegation is based on an earlier event that involved the exercise of the third respondent's powers under section 126 of the Customs Act.  It has nothing to do with what the applicant is asking this Court to review, which is the exercise of discretion by the third respondent under section 127A(1) of the Customs Act.  Secondly, the applicant has admitted in its prima facie evidence and in its pleading in the Statement, that the notice of seizure had been issued.  I have addressed that above under paragraphs 12 and 13 of my judgment.  When I consider all that against what counsel has submitted over the bar table and in her written submission, I will of course accept the prima facie evidence and the pleading.  I must add that this goes on further to demonstrate that the applicant is not serious or perhaps does not have a genuine case and that it is prepared to go at any lengths to change its story even on the eleventh hour and even if even if it means making submissions against its own evidence or pleading.  It may also amount to abuse of process.

24.	I am not satisfied that the applicant has demonstrated that it has an arguable case.

Exhaustion of administrative remedies

25.	The challenge is against the exercise of discretionary power of the third respondent under section 127A(1) of the Customs Act.  I find that there is no other administrative avenue other than coming to the National Court.  

26.	I refer to the respondents' argument as presented in their written submission.  In brief, counsel referred to section 176, 177 and 178 or Part XIV and Part XV of the Customs Act.  The provisions relate to payment of duty charged under protest and the processes one must follow after the protest is registered.  Counsel submits that the applicant has not exhausted these provisions before coming to the judicial review Court.  In my view, the arguments must fail.  Let me explain.  The intended decision sought to be reviewed relates to the discretionary exercise of power by the third respondent under section 127A(1).  It has nothing to do with dispute over import duty rates or charges.  I note however that the applicant has sought as an alternative relief in the Statement, a declaration for the Court order the applicant to pay the initial assessed import duty of K113,277.32 as opposed to the latter assessments.  That may have drawn the respondents' reply with this submission.  Relief hearing or consideration is assessed separately by a judicial review Court only after an applicant successfully establishes a primary judicial review relief (see cases: Mision Asiki v. Manasupe Zurenuoc (2005) SC797; Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479).  The case law states that even if leave is granted and the applicant is able establish a primary relief in the actual judicial review hearing, it would not automatically entitle the applicant to all the relief that it seeks.  But coming back to my finding, disputing import duty charges is not why the applicant has come to the Court to ask for leave to apply for judicial review.

Other relevant considerations

27.	And finally, let me say this.  The final administrative remedy, or should I say outside the formal administrative remedies or formalities, was the mutual understanding between the parties from 2014 to on or about May of 2017.  The prima facie evidence shows that the third respondent had delayed its exercise of discretion to auction the goods, based upon what seems was a mutual understanding between the parties, which was that the applicant should be given sufficient time to obtain the necessary exemption over its seized imported goods from the NEC.  In doing so, the third respondent had effectively allowed the applicant about three (3) years as at 2014, to obtain import duty exemption for its sixteen (16) containers.  Three (3) years, in my view, is a very long time.  The allowance of time, in my view, shows that the third respondent had been very reasonable towards the applicant at all material times before its latest intention or action.  I say this because had the third respondent acted strictly following the due process, the imported goods would have been auctioned in 2014 when the applicant had refused to give cash or bank guarantee as security for the release of the said imported goods.

28.	But the main point I wish to mention here is this.  When I see the proposed relief in the Statement, the two (2) primary relief are and I quote:

(b)	An order in the nature of a certiorari quashing the decision of the Second Defendant to put the Plaintiff’s containers on tender until a determination is made by NEC.
(c)	An order in the nature of prohibition prohibiting the Third defendant its officers servants or agents from acting upon, enforcing or giving any effect to section 127A of the Customs Act 1951 until determination by the Head of State pursuant to Section 9 of the customs Tariff Act 1990.

29.	The applicant essentially intends to seek more time so that it could wait for its exemption application, which is why it has filed this judicial review.  I note that I also raised this point with counsel at the trial.  I must therefore ask myself whether it is a good reason why this Court should exercise its discretion and grant leave to apply for judicial review.  The real question I think should be this.  Was sufficient time given to the applicant to wait for its application for import duty exemption from the NEC, and if so, whether this Court should therefore be reluctant to allow such a proceeding to continue?  My answer is this.  Again, this arrangement or understanding between the parties was done outside the formal administrative process.  . Nevertheless, it showed that the third respondent was prepared to wait and had allowed about three (3) years for that.  More than sufficient time was given to the applicant.  Nothing was forthcoming so the third respondent is now enforcing its duty under section 127A(1) of the Customs Act to sell the seized imported goods.  Let us not forget that the actual NEC decision number 88/2007 was made ten (10) years ago on 14 March 2007.  As stated above in my judgment, it was widely known then as the Green Revolution Policy.  Prima facie evidence shows that the applicant was fully aware of that policy before it went ahead to import its goods.  It would have known of the delay then.  Knowing fully well of the delayed period which was about six (6) years at that time, the applicant, it seems, took the risk upon itself to import its goods in the manner as it had done.  That is, in the hope that perhaps by the time when the goods arrive, the policy, despite the long delay, would come into fruition and that the applicant would benefit.  When the good arrived in December 2013, nothing has changed.  The third respondent, amongst other things, had allowed the applicant time to wait and apply directly to the NEC for the exemption.  In total, a period of ten (10) years has lapsed.  In my view, the whole waiting exercise by the applicant looks fantastic and unreal.  I am not convinced that this Court should exercise its discretion and grant leave only so that in the end and if the substantive relief is granted, the applicant will continue to wait and follow up on its application.  

30.	It also begs this question.  What is so special about the applicant's case, as opposed to other importers, that it had to be given this special treatment for more than three (3) years?  The NEC policy has never become law.  Therefore, the applicant, like any other importers, must adhere to the import duties imposed.  The Customs Act in my view sufficiently caters for persons with issues like the applicant.  The proper process would have been for the applicant to give cash or bank guarantee as security under section 126 of the Customs Act for the goods to be released.  That did not happen.  The other available process would be to pay under protest under section 176 of the Customs Act.  That option is optional but would have been a good option for the applicant to utilise.  It has not done all these except to file this judicial review with the primary aim of seeking more time.  That is, despite the fact that the third respondent had been reasonable and had allowed the applicant three (3) years to either obtain the necessary exemption from paying its import duty over its seized goods or to pay the import duty and receive its imported goods.

31.	My conclusion therefore this that this is not a good case for judicial review.  

Summary

32.	I refuse to exercise my discretion to grant leave to the applicant to apply for judicial review.  I find that the applicant has not pleaded any valid judicial review grounds that it may later rely on to argue against the decision that it seeks to review.  I find that the applicant does not deny, based on its prima facie evidence and pleading, that it had refused to give security guarantee in 2014 as required under section 127A(1) of the Customs Act.  Consequently, the third respondent has now exercised its power under section 127A(1) to auction the seized imported goods.  I find that the applicant may review the third respondent's discretionary power under section 127A(1).  However, I find that the applicant's lack of proper pleading of the grounds of review as well as my finding that there are no valid grounds pleaded, makes the intended judicial review baseless, that is, I find that there is no arguable case.

33.	I also refuse to exercise my discretion because the proposed final relief, which is intended to allow the applicant more waiting time regarding its pending applications for tax exemptions that are before the NEC, had already been given by the third respondent.  The third respondent had, before it exercised its power to auction the imported goods, allowed a period of more than three (3) for the applicant to get the necessary clearance or approval from the NEC.  I find that the applicant is attempting to obtain what had already been granted to it by the respondents.  The applicant's primary purpose appears futile and I find that it also demonstrates bad-faith.

Cost

34.	Cost is discretionary.  I will award cost against the applicant on a party/party basis to be taxed if not agreed.

THE ORDERS OF THE COURT

I make the following orders:

1.	I refuse leave to apply for judicial review.

2.	Cost of the application is awarded to the respondents on a party/party basis, which may be taxed if not agreed.

3.	Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.

_______________________________________________________________
Marubu Lawyers: Lawyers for the Applicant
Office of the Solicitor General:	 Lawyers for the First, Second, Third and Fourth Respondents