N9244

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 650 OF 2018

BETWEEN:
MILNE BAY SUSTAINABLE DEVELOPMENT CORPORATION LIMITED
First Plaintiff

AND:
MILNE BAY SEAFOOD EXPORTER LIMITED
Second Plaintiff

AND:
MUYUW LIMITED
Third Plaintiff
AND:
RUBEN KAUTU (CHAIRMAN) AND ALL MEMBERS OF THE BOARD OF THE NATIONAL FISHERIES AUTHORITY
First Defendant

AND:
JOHN KASU, MANAGING DIRECTOR, NATIONAL FISHERIES AUTHORITY
Second Defendant

AND:
NATIONAL FISHERIES AUTHORITY
Third Defendant

AND:
MICHAEL KAPE, PROVINCIAL ADMINISTRATOR & CHAIRMAN AND ALL MEMBERS OF THE MILNE BAY PROVINCIAL MANAGEMENT COMMITTEE
Fourth Defendant

AND:
HON. SIR JOHN LUKE CRITTIN KBE, CBE, MP, GOVERNOR OF MILNE PROVINCE
Fifth Defendant

AND:
HON. PATRICK BASA, MP, MINISTER FOR FISHERIES & MARINE RESOURCES
Sixth Defendant

Alotau: Toliken J
2018: 	09th, 12th October

PRACTICE AND PROCEDURE – Application for leave for judicial review – Whether   – Whether case for grant of leave for judicial review made out – Administrative remedies not exhausted -  Principle for exhaustion of administrative remedies discussed – Leave may be granted only in most exceptional circumstances – Exceptional circumstances for grant of leave notwithstanding – Leave granted – Obiter dictum - Constructive refusal to exercise administrative appeal function may be inferred in appropriate cases.
PRACTICE AND PROCEDURE - Whether the Plaintiffs can seek and be granted interim or substantive relief at leave stage – Practice discussed and considered – No other relief whether interim or substantive may be sought or granted – All relief sought refused - National Court Rules, Order 16,  National Fisheries Management Act 1998, s 44. 
Cases Cited

Anton Lokowai v Department of Sandaun [1997] PNGLR 639
Kalinoe v Paul Paraka Lawyers (2014) SC1366 
Kekedo v Burns Philp (PNG) LTD [1988-89] PNGLR 122 
Longan v Maken (2008) N4021
Peter Makeng v. Timbers (PNG) Limited (2008) N3317

Counsel

S Alberic, for the Applicants

RULING
12th October, 2018
1.	TOLIKEN J:	By originating summons dated 20th September 2018, the Plaintiffs seek leave for judicial review of:

(i)	The decision of the First, Second and Third Defendants in –
(a)	Refusing the plaintiffs application for renewal of licences for the 2018 BDM season; and
(b)	Referring the applications to the fourth and Fifth Defendants for review and recommendations
(ii)	The long delay by the Sixth Defendant in determining the appeals by the Plaintiffs.  

2.	They also seek the following:

1.	An order in the order of Certiorari to bring into this Court and quash the following decisions –
(a)	The decision of the First, Second and Third Defendants to refuse renewal of (BDM) Licences for the Plaintiffs’ for purposes of trade during the 2018 BDM Fishing session.
(b)	The decision of the First, Second and Third Defendants to refer the Plaintiffs’ applications for renewal of BDM Licences for the 2018 BDM Fishing Session, to the Fourth and Fifth Defendants for purpose of review of the refusal.
2.	Pursuant to Order 16 Rule 3 that the grant of leave to act a stay against the said decisions until the substantive issues are dealt with.
3.	An order in the nature of mandamus to compel the Sixth Defendant to determine the Plaintiffs’ appeals and/or grant renewal of (BDM) Licences for the Plaintiffs for the purpose of trade during the 2018 BDM Fishing Session.  

3.	And by Notice of Motion of even date the Plaintiffs further seek:

(i)	Pursuant to Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution and the inherent powers of the Court, pending further orders of the Court and the substantive hearing of the application for judicial review, that the Fourth and Fifth Defendants be restrained from facilitating or taking any decision, action or exercising any power or function in relation to the Plaintiffs.
(ii)	Pursuant to Order 16 Rule 3(8)(b) of the National Court Rules, and pursuant to Section 155(4) of the Constitution and  the inherent powers of the Court, pending further orders of the Court and the substantive hearing of the application for judicial review, the Sixth Defendant be compelled to determine the Plaintiffs’ appeal and/or grant renewal of BDM Licences for the Plaintiffs for the purpose of trade during the 2018 BDM fishing season. 

BRIEF BACKGROUND  
4.	The Plaintiffs are holders of BDM Licences issued by the National Fisheries Board for a period of 5 years, subject to annual performance review and compliance with reporting requirements and licence conditions before the commencement of each BDM season during the period of the Licences. 

5.	For the 2018 BDM season the National Fisheries Board refused to renew the Plaintiffs Licences against the recommendation of the NFA Licensing Committee which recommended for renewals. The Board instead advised the Plaintiffs to lodge appeals to the Office of the Governor for Milne Bay and the Provincial Management Advisory Committee.

6.	On 30th July 2018, the Plaintiffs applied for injunctive relief before this Court to restrain the Defendants (except the Sixth Defendant who was not a party then) from taking steps to open the 2018 BDM fishing season for the Milne Bay Province. The season was to open nationwide on 01st August 2018. The Court found that the Plaintiffs satisfied all the requirements for grant of injunctive relief but refused grant as the Plaintiffs had not availed themselves to the appeal procedures under the Fisheries Management Act 1998 which provide that persons aggrieved by a decision of the NFA Board appeals to the Minister for Fisheries within 30 days. (Section 44 of the Fisheries Management Act 1998).

7.	The Plaintiffs separately immediately lodged their appeals to the Minister on 01st August 2018. Despite numerous representations to the Office of the Minister and the National Fisheries Authority, the Minister has not convened a meeting of the Licence Appeals Committee to determine the appeal and make a decision, which it shall present to the Minister who shall thereafter determine whether to accept or reject the appeal.  

8.	And because the BDM session is well into its third month before it closes on 31st December 2018, or before Milne Bay reaches its Total Allowable Catch (TAC) of 142 tonnes (reduced from the initial 200 tonnes), the Plaintiffs applied as a matter of urgency for leave for review notwithstanding that their appeal is yet to be determined by the Minister. 

ISSUES
9.	The issues for my determination are these:

1.	Whether the Plaintiffs have made out a case for grant of leave for judicial review?
2.	Whether the Plaintiffs can seek and be granted interim or substantive relief at leave stage.  

Grant of leave for judicial review under Order 16 Rule 3 of the NCR is discretionary. Applications are usually made ex parte subject only to the requirement for notice and service of the application on the Secretary for Justice no later than two days before the application is made. 
Issue No.1: Whether the Plaintiffs have made out a case for grant of leave for judicial review?
10.	The relevant principles for grant of leave are trite and well settled. They are:
1.	The Plaintiff must have locus standi or sufficient interest
2.	There must not be undue delay
3.	Exhaustion of administrative remedies or avenues
4.	Arguable case.

11.	I have perused the Statement and grounds in support of the application and the supporting affidavit by one Frances Wane and I am satisfied that the Plaintiffs have sufficient interest in the decisions sought to be reviewed as those decisions directly affect their rights under their existing BDM Licences to enable them to take part in the 2018 fishing session for which I am satisfied they have prepared well for and expended financially. The Plaintiffs are clearly not busy bodies. 

12.	I am satisfied also that the Plaintiffs had acted without undue delay in coming to the Court after their attempts to get an expedited hearing of their appeal. They lodged their appeal on 01st August 2018 and despite both physical, email and written representations to NFA and the Office of the Minister nothing appears to have been done to process their appeals. 

13.	That they have an arguable case is not and cannot, on the material before me, be doubted. They each hold five-year BDM Licences granted by the NFA Board. The NFA Licensing Authority had reviewed their compliance requirements and had recommended to the Board that the Licences be renewed. Instead of renewing the licences, which would have been a matter of course, the Board refused to renew the licences and instead advised the Plaintiffs to appeal to the Office of the Governor and the Provincial Management Advisory Committee. 

14.	Whether the Board has the power to do that, and whether the Office of the Governor and the Provincial Management Advisory Committee has the power to hear appeals arising from decisions of the NFA Board is arguable. The Plaintiffs’ application is therefore not frivolous or vexatious. The matters raised by the Plaintiffs therefore merit a full hearing.

15.	The requirement for the Plaintiffs to exhaust administrative remedies available to them under the Fisheries Management Act 1998, however, presents some difficulty.  

16.	The Act (s 44) provides for a person aggrieved by the decision of the Board to refuse an application for licence to appeal to the Minister for Fisheries within 30 days. Upon receipt of the appeal the Minister is required to convene the Licence Appeals Committee which shall determine the appeal and make a decision. The decision is then presented to the Minister who shall thereafter determine whether to accept or reject the appeal.  For a fuller appreciation of the procedure, Section 44 of the Act provides:

44.	APPEAL.
(1) A person whose application for a license has been refused by the Board may appeal to the Minister.
(2) An appeal under this section shall be made in writing within 30 days of the date of refusal of the application.
(3) In the exercise of his power to determine an appeal, the Minister shall convene a meeting of the Licence Appeals Committee.
(4) The Licence Appeals Committee shall comprise a Magistrate at Grade 5 level, the Departmental Head of the Department responsible for transport matters and the Departmental Head of the Department responsible for provincial affairs matters or their nominees.
(5) The Licence Appeals Committee shall receive a status report of the appeal from the Executive Director, and shall consider the appeal, with the view to arriving at a decision on the appeal.
(6) A decision of the Licence Appeals Committee shall be presented to the Minister for his consideration and the Minister shall thereafter make a decision as to whether the appeal be accepted or rejected.
(7) The decision of the Minister under Subsection (6) is final.
(8) The Managing Director shall give effect to the decision of the Minister.
17.	The Minister has not convened, but if he has convened the Licence Appeals Committee at all, has not made a determination on the Plaintiffs’ appeals. The BDM fishery, because of its volatile nature is very restrictive. It is opens for a very specific period. Provinces are allocated TACs. Once they reach their TAC, the session closes regardless of whether the nationwide session is still open. The Plaintiffs in the instant case are caught in a situation where any further delay by the Minister or inaction on his part may very well prove financially disastrous for them if Milne Bay reaches its TAC of 142 tonnes before the nationwide closure on 31st of December 2018. 

18.	The Minister is directed in mandatory terms by Section 44 of the Act that he shall convene a meeting of the Licence Appeals Committee, consider the decision of the Committee and decide whether to allow or refuse the appeal. The provision does not give the Minister any discretion as to whether he can choose to consider the appeal or not. It, however, does not provide a time limit within which the appeal can be determined.

19.	It is obvious that the appeal procedure under the Act has not been exhausted. The Plaintiffs are still awaiting a decision by the Minister on their appeals. The general rule is that the Court cannot exercise its review jurisdiction unless administrative remedies have exhausted. That is trite. 

20.	That is, however, not to say that judicial review is not available in situations where appeal procedures are available. Kapi DCJ (as he then was) in Kekedo v Burns Philp (PNG) LTD [1988-89] PNGLR 122 (Kapi DCJ, Amet and Cory JJ), said that:
The proposition that judicial review is not available where there is an alternative remedy by way of appeal cannot be supported by authority …: see R v Chief Constable of Merseyside Police; Ex parte Calveley [1986] 1 QB 424 at 433. Where there are no expressed words taking away the judicial review jurisdiction of the National Court, the existence of the statutory remedy by way of appeal is no bar to the exercise of the judicial review jurisdiction: see R v Paddington Valuation Officer; Ex parte Peachey Property Corporation Ltd (No 2) [1966] 1 QB 380 at 400. This jurisdiction, of course, is discretionary. The rule is well established now that the judicial review jurisdiction will not be exercised readily where other remedies are available. In R v Chief Constable of Merseyside Police; Ex parte Calveley, Donaldson MR and May LJ reviewed the English authorities regarding the exercise of judicial review jurisdiction where there is an alternative remedy by way of appeal.
21.	The Court then held among other things:

(1)	… although the judicial review jurisdiction of the National Court exists and may be invoked where an alternative statutory administrative remedy is available, as a general rule, applications for judicial review should not be granted, save in the most exceptional circumstances, until the alternative statutory procedures have been exhausted.
(2)    In the exercise of the discretionary power to grant or refuse an application for judicial review the following considerations may be relevant:
(a)      the public policy considerations behind particular legislative enactments;
(b)      the socio-political circumstances and aspirations of the country;
(c)      the practicalities of the procedures for judicial review and statutory review such as speed of hearing; and
(d)      whether the matter depends on some particular or technical knowledge which is more readily available to the statutory review body.
22.	In that case the appellant had cancelled the work permits of certain expatriate employees of the Respondent pursuant to her powers under the Employment of Non-citizens Act (Ch No 374). Section 9(4) of that Act, provided that a person aggrieved by the cancellation of a work permit by the Secretary for the Department of Labour and Employment may appeal to the Minister within 14 days. Instead of lodging appeals with the Minister the Respondents applied for and were granted leave for judicial review and subsequently also secured stay orders. It was only after grant of leave that the respondents lodged their appeal with the Minister. The Court held that the respondents did not bring themselves within the exception to the rule and that the approach they took was an abuse of process.  It therefore allowed the appeal and ordered that matter proceeds with the appeal to the Minister. 

23.	The current case can be distinguished on the facts in Kekedo. Here the Plaintiffs lodged their appeals to the Minister for Fisheries well within the period of 30 days as stipulated by the Fisheries Management Act. Two months and 9 days after lodgement and numerous representations to the Minister’s Office and NFA, the Minister has not as much as indicate to the Plaintiffs whether he has convened the Licence Appeals Committee to determine the appeals. And while he tarries and delays the provinces TAC is steadily dwindling and for all we know, would be exhausted before the appeal is even heard. The BDM session is not all year around. It opens and shuts at specific times and is further subjected to the provincial TACs set by NFA.  

24.	Furthermore the very tiny window of opportunity allowed by NFA in the opening the 2018 BDM session which opened on 01st August 2018, and the short notification of refusal of the  Plaintiffs’ application for renewal of their Licences before the opening, accorded them no meaningful opportunity to seek the statutory remedy of appeal to the Minister. Even then the appeal period extended well after the session opened. To their credit, though, the Plaintiffs did lodge their appeals. 

25.	The Plaintiffs’ situation here can be said to be “most exceptional”, thus warranting the grant of leave, notwithstanding that their appeals are yet to be heard by the Minister. It is critical that the decisions sought to be reviewed are brought before this Court and the process leading to those decisions scrutinized. The process followed may have been statutorily sound, but time is not on the Plaintiffs’ side and therefore they cannot wait while the Minister takes his time. The Minister cannot forever sit on the matter. He must act and discharge his statutory function with due diligence. If he cannot for any reason at all, then the Court will exercise its constitutional supervisory jurisdiction or power to compel him to do so. The Plaintiffs seeks, among others, an order in the nature of mandamus to compel the minister to perform his statutory duty to hear their appeals. This is therefore an appropriate case to grant leave.

26.	For these reasons I ought to grant leave for judicial review.    

27.	  Before I move on to the second issue, I pause to comment briefly in passing (without the benefit of any argument from counsel or research for that matter) on what I think ought to be an alternative recourse in a situation such as this. I should think that where the Minister takes no steps, neglects or unduly delays in performing his statutory duty to hear the Plaintiffs’ appeals, and where the relevant legislation prescribes no time limit within which the Minister should determine the appeal, it may be appropriately and reasonably inferred that he has constructively refused the appeals. 

28.	Whether that is the case here, depends on the legislative context of the appeal procedures under the Act and perhaps in the case of a restrictive fishery like the BDM Fishery, on the stipulated fishing session as provided by this Fishery’s Management Plan and of course the period of time it has taken for the Minister to perform his statutory duties and the resulting consequences on the interests of the Plaintiffs.

29.	Without the benefit of argument from counsel, I am not prepared to infer constructive refusal here, but that is an option that may very well be taken in an appropriate case another time.  
Issue 2:	Whether the Plaintiffs can seek and be granted interim or substantive relief at leave stage.  
30.	As noted at the outset the Plaintiffs also applied for interim orders to restrain the Fourth and Fifth Defendant from facilitating or taking any decision, action or exercising any power or function in relation to the Plaintiffs, and for the Sixth Defendant be compelled to determine the Plaintiffs’ appeal and/or grant renewal of BDM Licences for the Plaintiffs for the purpose of trade during the 2018 BDM fishing season. 

31.	The relief sought against the Sixth Defendant is in fact a substantive relief one which the Plaintiffs will ultimately seek if the leave application is granted. It is trite that no substantive relief may be granted on motion or even at leave stage.  (Kalinoe v Paul Paraka Lawyers (2014) SC 1366 (Kandakasi, David, Murray JJ); Peter Makeng v. Timbers (PNG) Limited (2008) N3317(Injia DCJ) Therefore the Plaintiffs prayer in respect of this relief cannot be entertained now. It has to wait until the review is heard.

32.	 What about the interim relief sought by the Plaintiffs? Should the Plaintiffs be heard at all on these?

33.	Mr. Alberic submitted that the prayers for interim relief can be heard and granted simultaneously with the application for leave to review.  He relies on a decision of Bidar AJ in Anton Lokowai v Department of Sandaun [1997] PNGLR 639.  It, however, appears that in that matter the plaintiff brought his application seeking leave for judicial review simultaneously with his application for review itself. His Honour commented that counsel appeared to have been confused with terminology, but in the end granted leave to the plaintiff to apply for judicial review. Hence, this case is not authority for simultaneous grant of interim relief with grant of leave for judicial review.  In any case the application for judicial review could not have been filed together with the application for leave for judicial review as the former may only be made after grant of leave.

34.	It is not disputed that the court can grant interim relief pursuant to Order 15 Rule 3(8) which relevantly provides:

3.      Grant of leave to apply for judicial review. (UK. 53/3)
…
(8)     Where leave to apply for judicial review is granted, then—

(a)  if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders; and
(b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ.
35.	So, when can the Court grant interim relief? Is it simultaneously with grant of leave as submitted by Mr Alberic? 

36.	Sub-rule 8 clearly provides that interim relief may only be granted after grant of leave, not simultaneously with or before grant of leave. This point was brought home with clarity by Injia DCJ (as he then was) Peter Makeng v. Timbers (PNG) Limited (supra) and approved by the Supreme Court in Kalinoe v Paul Paraka Lawyers (supra). His Honour said – 
8. There is no provision in O 16 which gives the Court jurisdiction to grant a stay or interim injunctive relief before leave for judicial review is granted. Order 16 r 3 (8) is the only applicable provision on grant of stay or other interim relief. …. On the contrary, Order 16 r 3 (8) gives the Court jurisdiction to grant a stay or interim relief only after leave for judicial review has been granted. (Underlining supplied)
37.	It follows therefore the interim relief sought by the Plaintiffs in their Originating Summons is out of order and ought not to be entertained at this stage. No interim relief can be sought and granted before or simultaneously for the simple reason that, until leave is granted, the court is not seised of jurisdiction. It is the grant of leave that confers jurisdiction on the Court to not only review the decision under enquiry but to grant relief pursuant to r 3 (8). On this point His Honour again said – 
21. … the grant of leave for judicial review is a pre-condition to a grant of stay and any other interim relief in any judicial review matter. By the grant of leave, the Court grants itself jurisdiction to grant the relief sought, whether such relief be interim or substantive. 
38.	In Makeng v Timbers (PNG) Limited (supra) His Honour was critical of the practice of pleading other relief in an application for leave for judicial review. His Honour said at para. 37 –
37. In terms of the procedure for grant of leave for judicial review, an application for leave is made by Originating Summons. The Originating Summons should not plead any other relief. It should simply seek leave to apply for judicial review of the subject decision which should be particularized. A Motion seeking leave for judicial review and/or an order for stay or any other interlocutory relief is not required to be filed at the leave stage. The current practice by many lawyers of filing an Originating Summons seeking leave and also stay or other interim relief and then filing a Motion seeking the same relief as in the Originating Summons should cease as it only confuses the procedure and is inconsistent with the provisions of O 16 r 3 and O 16 r 5 (2). (Underlining supplied)
39.	Things cannot any clearer than that clear statement of the correct procedure in applying for leave for judicial review. Hence, no other orders, substantive or interim, apart for leave itself can be granted at this stage.

40.	 The whole procedure from application for leave to the review itself was also helpfully discussed a little while later by His Honour, this time in his capacity as Chief Justice in Longan v Maken (2008) N4021.  His Honour’s summation of the procedure was again cited with approval by the Supreme in Kalinoe v Paraka Lawyers (supra) in the following terms:
26. We are respectfully of the view that, His Honour's interpretation and understanding of the provisions of O.16, r.3 (8) and O.16, r.5(2), in terms of the above is correct. Accordingly, we adopt them as our own and add for clarity sake that, O.16, r.5(1) and (2) provides as to the steps to take once leave has be grant. Hence how the whole process of judicial review should work out is as follows:
(1) An Originating Summons is filed seeking only one relief, namely leave for judicial review together with a Statement as described by O.16, r. 3(2)(a) and an affidavit verifying the facts relied by the applicant.
(2) Copies of the documents under (1) above should then be served on Secretary for Justice, not less than 2 days before the date set for its hearing (O.16, r.3).
(3) If leave for judicial review is granted, a notice of motion seeking judicial review must then be filed and served in accordance with the provisions of O. 16, r.5 (2) and proceed to a hearing in accordance with and in due compliance of the provisions of r.5 (3) - (5).
(4) If any urgent or interim relief is also sought this should be included in the notice of motion and may be argued earlier if need be or otherwise in accordance with motions rules prior to a hearing and determination of the substantive review.
(5) After attending to any pressing urgent or interim matter, the substantive review application should proceed to a hearing without delay, a date for which, should be fixed within 21 days from the grant of leave.
41.	That being said, I am satisfied that leave for judicial review of the decisions in question ought to be granted. I grant leave accordingly.
 
42.	As we have seen the whole process from grant of leave to the hearing of the substantive review application should proceed without delay and a date for hearing should be fixed within 21 days. 

43.	In their Originating summons the Plaintiffs asked that they file their Notice of Motion within 21 days pursuant to Order 16 Rule 5. In their Notice of Motion, which is ineffectual given what I have discussed above, they asked for a inter parte hearing within 30 days. However, on oral submissions Mr. Alberic asked for a shorter period due to the urgency of the matter. This is an appropriate case for the Court to dispense with the strict requirements of Order 16 Rule 5 pursuant to Oder 16 Rule 14 to allow for the Plaintiffs to do all that is necessary to expedite hearing of the substantive review.
ORDERS
44.	I therefore order as follows:

1.	Leave for Judicial Review is granted.

2.	The plaintiffs shall file and serve their Notice of Motion pursuant to Order 16 Rule 5 (2), on all the Defendants by Wednesday 17th October 2018.

3.	The matter returns to the Court for inter parte hearing on Wednesday 24th October 2018.

4.	Costs shall be in the cause.

5.	Time be abridged to the date of settlement which shall take place forthwith.
Orders accordingly.
_______________________________________________________________
Simon Alberic Lawyers: Lawyers for the Plaintiffs