N6644

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 490 OF 2012

APPLICATION FOR JUDICIAL REVIEW PURSUANT TO ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN:

RABAUL SHIPPING LIMITED
Applicant

AND:
CAPTAIN NAFIZUL HOSSAIN, Manager, Survey and Inspection
First Respondent

AND:
CHRIS RUPEN, General Manager, National Maritime Safety Authority
Second Respondent

AND:
NATIONAL MARITIME SAFETY AUTHORITY
Third Respondent

AND:
THE INDEPENDENT STATE OF PAPAU NEW GUINEA
Fourth Respondent

Kokopo: Anis AJ
        2016:  12 July & 26 September
2017:  17 February

JUDICIAL REVIEW – review challenging interpretation of section 69 of the Merchant Shipping Act 1975 - applicant applied for survey of two (2) vessels - applicant re-directed and asked to engage private surveyors - imposition of new process for survey of vessels

PRACTICE & PROCEDURE – legal questions raised earlier raised again in the review - whether judicial review Court can interpret or substitute its decision or opinion over the decision being reviewed - role of judicial review Court discussed

Case cited:
Dominic Philip v. The National Education Board (2008) N4024
Rose Kekedo -v-Burns Philip (PNG) Ltd & Ors [1988-89] PNGLR 122
Jacob Yafai v. Dr. Philip Kereme (2016) SC1531
Jerry Magiri v. Papua New Guinea Forest Authority (2009) N3670
Martin Kehene v. Allan Jogioba (2008) N4025
Pombros Maliu v. Samuel K Geno (2013) N5144

Counsel:

Ms C Pulapula, for the Applicant
Mr T Potoura, for the 1st, 2nd and 3rd Respondents
Mr A Edo, for the 4th Respondent

JUDGMENT

17th February, 2017

1.	ANIS AJ:	This is a judicial review ruling.  Leave to apply for judicial review was granted earlier by His Honour the then Acting Judge Justice Maliku on 14 September 2014.  This Court heard the application for judicial review on 12 July 2016.  Presentation of submissions was later heard on 26 September 2016.  The Court reserved its ruling indefinitely until today.

DECISION FOR REVIEW

2.	Let me begin by stating the decision the applicant is asking this Court to review.  According to the Applicant's Statement, which was filed on 17 August 2016 under Order 16 Rule 3(2(a) of the National Court Rules (herein after referred to as the Statement), it reads:

(a)	The decision of the Respondents made on the 11th July 2012 of its refusal to duly nominate a Ships Surveyor to conduct its Annual Survey for MV Madang Queen and Morobe Queen.

EVIDENCE

3.	The parties filed a Review Book (herein after referred to as the RB) on 12 May 2016.  The applicant called one witness Captain Peter Sharp.  The witness gave evidence in chief and was cross-examined in Court.  The respondents called one witness namely Captain Nafizul Hossain.  He was also examined and cross-examined in Court.  The parties formally tendered their affidavits.  Let me set them out herein:

Exhibit	Description
	Date & Date filed	
P1	Affidavit of Elsie Takoboy, sworn and filed. 
	17/12/13	
P2	Affidavit In Support, Elsie Takoboy, sworn and filed.
	16/08/12
20/08/12	
P3	Affidavit of Capt. Peter Robert Sharp, sworn and filed.
	20/10/12
08/11/12	
P4	Affidavit of Capt. Peter Robert Sharp, sworn and filed.
	14/08/12
17/08/12	
P5	Affidavit of Capt. Peter Robert Sharp, sworn and filed.	02/04/14
02/04/14	
D1	Affidavit of Chris Rupen, sworn and filed.	27/11/12
22/02/13	
D2	Affidavit of Capt. Nafizul Hossain, sworn and filed.
	18/12/13
18/03/14	
D3	Affidavit of Capt. Nafizul Hossain, sworn and filed. 
	11/12/13
13/12/13	

GROUNDS OF REVIEW?

4.	I will now address the grounds of review, as they of course will set the foundation of the applicant's arguments in this judicial review application.  They are contained in the Statement at page 271 of the RB.  They read as follows:

(i)	The First Respondent after receiving an application in the required form on the...of July 2012 refused to duly nominate a Surveyor to conduct an annual survey of two of the motor vessels Madang Queen and Morobe Queen operated by the Applicant.  Even though the Respondents were aware of the legal requirement to do so and such was pointed out to the Respondents they continue to refuse (to) follow the requirements of the Merchant Shipping Act.  A further letter sent by the Applicant specifying the exact provision of the Merchant Shipping Act and question why if a Flag Station Inspection could be conducted then why couldn't an Annual Survey be conducted.

(ii)	The Respondents were fully aware of their legal requirement to nominate a surveyor yet have failed to do so.  The Applicant explained to the Respondents that the Merchant Shipping Act specifically states that the Authority has to nominate a surveyor who is gazetted, to cause the ship to be surveyed, instead the Respondents have directed the Applicant (to) nominate a surveyor from the list of Non-exclusive surveyors which is not provided for in the Merchant Shipping Act.

5.	The immediate preliminary question that comes to my mind is this:  Are these valid or sufficient judicial review grounds?  Order 16 Rule 13 of the National Court Rules sets out, not an exhaustive, but a valid list of the types of grounds for judicial review:  They are and I read:

•	Ultra vires /lack of jurisdiction
•	Breach of procedures prescribed by statute or sub-ordinate legislation designed to ensure procedural fairness in decision-making
•	Acting under dictation
•	Real or apprehended bias
•	Bad faith
•	Inflexible application of a government policy
•	taking into account irrelevant considerations
•	Extraneous (improper) purpose.
•	Error of law on the face of the record
•	Wednesbury principle of unreasonableness

6.	The first thing I notice is that none of the grounds under Order 16 Rule 13 of the National Court Rules is pleaded in the applicant's two (2) grounds of review.  And the more I inquire, I find errors in the two (2) so called grounds of review, which in my opinion are serious.  Am I entitled to revisit the merits of the grounds of review?  The answer is "yes".  I refer to the principles held in the case of Dominic Philip v. The National Education Board (2008) N4024, which the Supreme Court in the case of Jacob Yafai v. Dr. Philip Kereme (2016) SC1531 has also recently endorsed.  The decision of the National Court was by the Deputy Chief Justice Salamo Injia, as he then was.  His Honour 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. At the hearing parties will not be permitted to advance grounds which clearly lack merit, or introduce new grounds which are not pleaded and produce evidence or material and raise issues and submissions which have no connection with the grounds pleaded.  It is for this reason that at the hearing of the leave application and at the direction hearing upon grant of leave, the court should scrutinize and refine them and even weed out those relief and grounds which are not available in judicial review, or vague; or duplicitous, and clearly lack merit so that only those relief, grounds issues which arise from those grounds and relevant evidence which support those grounds are allowed to proceed to a hearing. A similar exercise should be carried out at the hearing of the substantive application in case some of those matters escape proper scrutiny at the leave or directions stage.

(Underlining is mine)

7.	Having the said mandate, I will begin by addressing what I would term as the main problems with the applicant's two (2) grounds of review.  Firstly, the two (2) grounds of review are drafted like statement of arguments or submissions.  That is not, in my opinion, how an applicant should plead a ground of review in a Statement that is filed under Order 16 Rule 3(2)(a) of the National Court Rules.  The applicant's pleading is contrary to law, practise and what the Court has held in the Dominic Philip case. 

8.	The second point I wish to make is this:  The two (2) grounds of review relate to the merit of the matter.  That is, the applicant had used the said arguments and submissions against the decision that is now the subject of this judicial review.  In other words, the applicant wants this Court to review or find whether its earlier arguments it had raised against the respondents in relation to the interpretation of section 69 of the Merchant Shipping Act Chapter No. 242 (herein after referred to as the MSA), were correct.  Is that the function of a judicial review Court, or can this Court make such a finding, I ask?  And are these two (2) grounds of review recognised by law?  I would answer "no" to both questions.  There are ample case authorities that support the Court's view.  Let me firstly refer to Justice Makail's decision in the case of Jerry Magiri v. Papua New Guinea Forest Authority (2009) N3670.  His Honour said and I read:

11.     The Plaintiff has pleaded grounds that go to challenge the merits or otherwise of the findings of guilt of each of the serious disciplinary charges and decision of the Acting Managing Director of the Defendant to terminate the Plaintiff from employment.  As it is settle law in this jurisdiction that a Court reviewing a decision of an inferior decision making authority is not concern with the merits or demerits of the decision but rather the process by which the inferior decision making authority arrives at its decision, I am of the view that it is not open for me to review the evidence of the Plaintiff and the Defendant and substitute the decision of the Acting Managing Director of the Defendant with that of mine.

12.     A judicial review is not the same as an appeal and the difference between the two is that in an appeal, the appeal Court hears the case a fresh by considering the evidence by way of a rehearing and it can substitute its own findings whereas in a judicial review, the Court only looks at the procedures or processes used by the inferior decision making authority to arrive at the decision and it is not concern with the decision itself.  The authority for this principle of law is the case of Rose Kekedo -v-Burns Philip (PNG) Ltd & Ors [1988-89] PNGLR 122.  But it appears that litigants and counsel these days misunderstand or simply do not know the distinction between these two processes.  That is why far too many judicial review cases end up before this Court as appeals and often than not are dismissed by the Court for that reason alone.

(Underlining is mine)

9.	The second case I would refer to is the case of Pombros Maliu v. Samuel K Geno (2013) N5144.  The case supports both points I had discussed above in my judgment.  Justice Cannings there held and I read:

3.     I reject the application for review of this decision as there are no proper grounds of review set out in the statement under Order 16, Rule 3(2)(a) of the National Court Rules. The Order 16 statement is a critical document in any judicial review. It must set out precisely the grounds of review relied on to vitiate the decision being challenged. The grounds must be recognised by law as proper grounds upon which judicial review is available and refer to the statutory provision or common law duty alleged to have been breached (Paul Asakusa v Andrew Kumbakor (2009) N3303). Here the ground relied on to challenge the decision to retrench the plaintiff was that the Director-General did not determine the ‘veracity’ of the resignation notice and that this amounted to negligence. It was not claimed that the Director-General erred in law or took into account irrelevant considerations or acted unreasonably or breached any statutory or common law duty or exceeded his jurisdiction or acted in any other way falling within any established ground of judicial review. The Order 16 statement is just an invitation to the Court to revisit the merits of the decision, which is not permissible. Hence the application for judicial review in respect of the first decision is refused.

(Underlining is mine)

10.	The third case I would like to refer to is the case of Martin Kehene v. Allan Jogioba (2008) N4025.  The Deputy Chief Justice Salamo Injia, as he then was, said and I read:

It is a restrictive process and not an open forum people with misguided complaints over administrative errors and mis-judgments to rehash or reargue their case before the Court, on any conceivable ground and raise material and issues which have no basis in law and the pleadings of proper grounds of review.

11.	The Supreme Court in Jacob Yafai v. Dr. Philip Kereme (2016) (supra) also endorsed the Martin Kenehe case as correctly stating the position or principles concerning judicial review applications.  I will also adopt them herein.

12.	Now, the applicant in the present case owns two (2) vessels namely MV Madang Queen and MV Morobe Queen (herein after referred to as the two vessels).  In July 2012, it applied to the third respondent, pursuant to section 69 of the MSA, requesting surveys for the two vessels.  The respondents responded stating that they had delegated the role of surveying of vessels under PNG Flag to their non-exclusive surveyors in the private sector.  Essentially, the respondents advised the applicant that the practice has changed and, unlike in the past where the respondents would provide their internal surveyors to survey ships under section 69 of the MSA, the said role was delegated to their designated (or non-exclusive surveyors) surveyors in the private sector to perform.  The respondents directed the applicant to choose and use one of the designated private surveyors to survey the two vessels.  The applicant refused to comply with the new practice and direction.  That is how this matter has found its way into this judicial review Court.  

13.	The above brief summary of the facts shows the real intention why the applicant has come before this judicial review Court, that is and as I have already pointed out above in my judgment, to get this Court to determine the merits of the arguments of the parties.  The said intention is made clearer when I look at the consented issues the parties have prepared, which are set out at pages 126 and 127 of the RB.  I read:

(i)	Whether or not Section 69(3) of the Merchant Shipping Act 1975 allows the Respondents to nominate a list of surveyors for the applicant to choose from?
(ii)	Whether or not the Respondents can use surveyors who are not employed by the Respondents to conduct a survey of the vessels.
(iii)	Whether or not Madang Queen and the Morobe Queen are load line or convention vessels?
(iv)	Should the Madang Queen and the Morobe Queen be held not be load line convention ships, whether the respondents had fulfilled their legal obligations to the Applicant under section 69(3) of the Merchant Shipping Act 1975 when it nominated as list of surveyors to the Applicant to survey the ships?

14.	As it can be seen, none of the four (4) issues above touches on any of the judicial review ground recognised by law.  They all relate to the merits or they challenge the original decision of the respondents.  

15.	The third point I wish to make is this:  The applicant ran the trial and presented its evidence and submissions as if the proceeding was commenced under an originating summons or a writ of summons.  Well, these (i.e., proceeding under an originating summons or a writ of summons), in my opinion, would have been the correct modes of proceedings for the applicant to choose from and pursue, but not by way of judicial review.  For example, the applicant could file an originating summons and seek declaratory relief.  One of the relief may be for a declaration that section 69 of the MSA requires the respondents to provide internal surveyors.  That would in my opinion, form the foundation for the National Court to interpret section 69 of the MSA.  This option or opportunity is available to the applicant.

FINDING

16.	I therefore find and rule now that this judicial review is without merit, baseless and is an abuse of the Court's process.  I will dismiss it.

COSTS

17.	I will award costs of the proceeding to the respondents to be taxed using the party/party costs scale.

THE ORDERS OF THE COURT

I make the following orders:

1.	The proceeding is dismissed.

2.	The applicant shall pay respondents' the costs of the proceeding which is awarded on a party/party basis which shall be taxed if not agreed.

3.	The time of entry of this judgment is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly,

_______________________________________________________

Rabaul Shipping In-House Lawyer: Lawyers for the Applicant
National Maritime Safety Authority
In House Lawyer: Lawyers for the 1st,2nd and 3rdRespondents 
Office of the Solicitor-General	: Lawyers for the 4th Respondent