PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2024 >> [2024] PGNC 10

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Comfort Management Services Ltd v The Chairman of Morobe Provincial Building Board [2024] PGNC 10; N10653 (22 January 2024)

N10653

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS NO. 208 OF 2023


BETWEEN:
COMFORT MANAGEMENT SERVICES LTD
Plaintiff/ Applicant


AND:
THE CHAIRMAN OF MOROBE PROVINCIAL BUILDING BOARD AND MOROBE PROVINCIAL GOVERNMENT
First Defendant/Respondent


AND:
LAE CITY AUTHORITY
Second Defendant/Respondent


AND:
BENJAMIN SAMSON in his capacity as SECRETARY of DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Third Defendant/Respondent


AND:
ALA ANE in his capacity as REGISTRAR OF
Fourth Defendant/ Respondent


AND:
HON. JOHN ROSSO in his capacity as MINISTER FOR LANDS AND PHYSICAL PLANNING
Fifth Defendant, Respondent


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant/ Respondent


Lae: Dowa J
2023: 20th October
2024: 22nd January


PRACTICE AND PROCEDURE- application for leave to apply for judicial review-applicant has onus to meet prerequisites for leave-applicant failed to demonstrate it has an arguable case- that there was undue delay-and proceedings were an abuse of the process as applicant failed to prosecute earlier proceedings where leave was granted for the same matter-application refused.


Cases Cited:
Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122
Michael Gura vs Lieutenant Colonel Rickavaperry & Others
Independent State of Papua New Guinea vs Toka Enterprises Ltd (2018) SC1746
NTN v PTC [1987] PNGLR 70
In State & Sali v Sisia [1987] PNGLR 102
In Application of Eric Gurupa (1990) N856
In Application of Evangelical Lutheran Church of PNG [1995] PNGLR 276
In Tepas v Tekum (1999) N1921
In Pipoi v (2008) SC909
SHPG v Kalu (2016) SC1568
Leo Duque v Avia Andrew Paru [1997] PNGLR 378


Counsel:
P. Yama, for the Plaintiff
S. Maliaki, for Third to Sixth Defendants


RULING


22nd January 2024


1. DOWA J: This is a ruling on an application for leave to apply for judicial review. The Plaintiff seeks leave to apply for judicial review of the Fifth Defendant’s decision made on 14th September 2020 forfeiting the Plaintiff’s State Lease Volume 24 Folio 32 over property described as Allotment 3 Section 90, Lae Morobe Province.


FACTS


2. The Plaintiff is a company incorporated under the Companies Act. The Plaintiff was until the 14th of September 2020, the proprietor of the property described as Allotment 3 Section 90 Lae, under a Special Purpose Lease (Public Toilet Facility), Volume 24 Folio 32. On 14th September 2020, the fifth Defendant in his capacity as the Minister for Lands and Physical Planning, forfeited the Plaintiff’s State Lease. The Lease was forfeited on the following grounds:


i. failure to comply with improvement covenants in the state lease.

ii. the Lease was granted, based on false and misleading information.

iii. failure to comply with the Notice to Show Cause.


3. The Plaintiff pleads that it has complied with the lease covenants and the Notice to Show Cause. The Plaintiff alleges that the decision to forfeit the lease was erroneous, unlawful, ultra vires its powers, unreasonable and made in bad faith. The Plaintiff seeks leave for the review of the decision in these proceedings.


THE APPLICATION


4. The Plaintiff relies on the following documents:


  1. Originating Summons filed 9th August 2023
  2. Statement of Claim filed 9th August 2023.
  1. Affidavit of Joycee Kekau filed 9th August 2023.
  1. Affidavit of Joycee Kekau filed 14th September 2023.

5. The application is opposed by the Defendants. The Defendants rely on the affidavit of Salome Maliaki filed 3rd October 2023. The Defendants raise a preliminary issue that the Originating Summons is incompetent as it seeks additional reliefs apart from leave.


ISSUES


  1. The issues for consideration are:

i. Whether the Originating Summons is competent.

ii. Whether the Plaintiff is entitled to be granted leave to apply for judicial review.


LAW


7. The relevant Rules under the National Court Rules are Order 16 Rule 1(1) and (3), which reads:


“1. Cases appropriate for application for judicial review. (UK. 53/1)


(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.


3. Grant of leave to apply for judicial review. (UK. 53/3)


(1) An application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this Rule.


(2) An application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a Judge in chamber and must be supported.


a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and

(b) by affidavit, to be filed before the application is made, verifying the facts relied on.......”


8. The law on application for leave to apply for judicial review is settled in this jurisdiction. In Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122, the Supreme Court stated that:


“The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers”.


9. The Supreme Court in that case stated further that:


“The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process.”


10. For the Plaintiff to be granted leave it must demonstrate that:


  1. It has sufficient interest.
  2. It has an arguable case.
  3. There is no undue delay.
  4. Has exhausted all administrative avenues.

(Refer. NTN v PTC (1987) PNGLR 70)


SUBMISSIONS OF COUNSEL


11. Mr Yama, counsel for the Plaintiff submits that the Plaintiff has met the minimum requirements for leave, in that:


  1. The Plaintiff is the holder of the State Lease over the property Lot 3 Section 90, Lae which is the subject of the forfeiture and thus has sufficient interest.
  2. In respect of the delay in the application, the Plaintiff says they made an earlier application for judicial review in OS No 303 of 2021 but was dismissed due to the lawyer’s failure to prosecute the case. It is not the fault of the Plaintiff.
  1. The Plaintiff has an arguable case in that:

i. the Defendants made an error in granting a wrong State Lease. The Plaintiff applied for a Business/Commercial Lease, but the Department of Lands granted a Special Purpose Lease,


ii. The fifth defendant made an error in forfeiting the lease for noncompliance of the lease covenant and for failing to respond to the Notice to Show Cause when the Plaintiff in fact sent an explanation in time providing the reasons why the lease should not be forfeited,


iii. that the minimum conditions of the state lease were complied with.


iv. The first and second defendants were unreasonable in demolishing the improvements on the property which paved way for the fifth Defendant to issue the forfeiture, a calculated move to deprive the Plaintiff from the use and ownership of the subject property.


d). There is no other administrative avenue to challenge the forfeiture except through judicial review.


12. Ms. Maliaki, counsel for the third, Fourth, Fifth and Sixth Defendants, opposes the application for the following reasons:


  1. As a preliminary issue, the Originating Summons is incompetent in that it seeks additional reliefs apart from leave, which she submits is contrary to order 16 Rule 3(2) of the National Court Rules.
  2. In respect of the substantive issue, the Plaintiff does not have an arguable case. The Plaintiff was contracted to manage the toilet facilities under a Memorandum of Agreement entered between the Plaintiff and Lae Urban LLG in May 2014. Without the knowledge and consent of the first and second Defendants and in breach of the terms of the Agreement the Plaintiff applied directly and in secret a State Lease in its own name which was granted in 2016. The Lease was a Special Purpose Lease for public toilets. The Plaintiff proceeded to construct other commercial buildings on the property without Building Board approvals and which were eventually demolished. The result is the Plaintiff did not and could not keep up with the lease covenants and had the lease forfeited. The reasons advanced for the forfeiture are sound and are lawful and not unreasonable.
  3. That the Plaintiffs have instituted earlier proceedings in OS 303 of 2021 which was dismissed, and the current proceedings are an abuse of the process.
  4. Ms. Maliaki submits, there is undue delay, of almost 3 years.

REASONS FOR DECISION


13. I have read the Originating Summons and supporting documents, the affidavits of parties and submissions of counsel.


14. I will deal with the preliminary issue first. Under order 16 Rule 3(1) of the National Court Rules, the only relief required is an application for leave. After leave is granted, it is then open to the Court to grant interim and other orders as may become necessary. In the present case, the Applicants sought additional reliefs apart from leave in the Originating Summons. It is not permissible under the Rules.


15. Does this render the current proceedings incompetent or become an abuse of the process. In my view, it does not. The substantive application is for leave. If there exist grounds for leave, a Court should not be hesitant to grant leave. To do so otherwise is to drive an applicant from the judgment seat only because of technical issue. On the other hand, the rule exists to protect the Court from ambitious litigants who seek quick orders disturbing the administrative/quasi-judicial decisions.


16. In the exercise of my discretion I will strike out the balance of the reliefs sought and proceed to consider the leave application only on its merits.


SUFFICIENT INTEREST


17. I now turn to the substantive issues. Firstly, I am satisfied from evidence provided that the Plaintiff has standing to institute the current proceedings. There is no dispute that the Plaintiff was the registered owner of the property Allotment 3, Section 90, Lae until it was forfeited on 14th September 2020. It is aggrieved by the decision of the fifth Defendant and therefore, has sufficient interest and standing to institute the proceedings.


UNDUE DELAY


18. This application is brought about 2 years 11months after the State Lease was forfeited. There is a delay of two and half years. Order 16 Rule 4 (2) of the National Court Rules provides that an application for judicial review be brought to Court within four (4) months.


19. It is generally accepted that the period of four months is not mandatory. The Court has the discretion to enlarge that period provided the application is brought within a reasonable time, and a reasonable explanation for the delay is given. What amounts to undue delay depends on the circumstances of each case. The following cases illustrate this point.


20. In NTN v PTC (1987) PNGLR 70, the leave application was refused for undue delay after it was brought 11months late. The Court was of the view that the grant of leave that late would be detrimental to good administration.


21. In State & Sali v Sisia (1987) PNGLR102, the Supreme Court held, in upholding an appeal, that a delay of five years was undue delay.


22. In Application of Eric Gurupa (1990), N856, the application for leave was refused for undue delay. The application was brought after two years with no reasonable explanation for the delay.


23. In Application of Evangelical Lutheran Church of PNG (1995) PNGLR 276, the Court refused the application for leave for undue delay. The period of delay was 11 months where the applicant offered no good reasons for the delay.


24. In Tepas v Tekum (1999) N1921, the Court refused leave for undue delay. The application was made 13 years after the administrative decision, the subject of the leave application.


25. In Pipoi v (2008) SC209, the Supreme Court, in dismissing an appeal, held that a delay of 11 years was undue delay and affirmed the decision of the National Court which refused the leave application.


26. In SHPG v Kalu (2016) SC1568, the Supreme Court refused leave for undue delay. The delay was for more than 3 years with no reasonable explanation.”


27. In the present case, the decision for forfeiture was made on 14th September 2020. The proceedings were filed on 9th August 2023, a delay of two and half years. The explanation for the delay provided by Joycee Kekau is this. When they first learnt of the forfeiture, they commenced proceedings for judicial review in OS (JR) N0 303 of 2021 between the same parties in September 2021. The proceedings were dismissed for want of prosecution due to neglect of duty by the former lawyers.


28. I do not find the neglect of duty by the Plaintiff’s former lawyers is good reason for the delay (Leo Duque v Avia Andrew Paru (1997) PNGLR 378). Rather, I find the current proceedings is an abuse of the process. I take judicial notice of the previous proceedings in OS(JR) No 303 of 2021 and note the proceedings were in the same terms as the current proceedings between the same parties. In that proceeding, leave to file a judicial Review was granted on 8th March 2022. The Court, in granting leave, directed the Plaintiff to file its substantive Notice of Motion for Judicial Review within 14 days. When the matter returned to Court on 4th April 2022, the Plaintiff has not yet filed the Notice of Motion for judicial review. The matter was then fixed for summary determination on 13th April 2022. When the matter returned to Court on 13th April 2022, the lawyers for the Plaintiff did not turn up. The Defendants’ lawyers applied for dismissal of the proceedings. The proceedings were dismissed for failing to comply with the directions of Court as well as for want of prosecution. On 21st April 2023, the Plaintiff filed an application to set aside the orders of 13th April 2022 and reinstate the proceedings. The matter was mentioned on 21st April and adjourned to 7th July 2023 for hearing. When the matter returned to Court for hearing on 7th July 2023, the lawyer for the Plaintiff did not turn up to move the application. The Notice of Motion was dismissed for want of prosecution. I find the current proceedings are an abuse of the process. The Plaintiff was granted leave to apply for judicial review. It did not take up the opportunity. The Plaintiff is asking again for the same relief. It is an abuse of the process, and the Court is not inclined to grant the relief sought in the proceedings.


Arguable Case


29. The next important consideration is whether the Plaintiff has an arguable case. The Plaintiff presents two main arguments. First it argues that the Department of Lands made an error in granting a Special Purposes Lease when the Plaintiff applied for a Commercial/Business Lease after its application for rezoning was approved. Second, the Plaintiff argues that it has complied with the lease covenants and has provided a reasonable explanation which the fifth Defendant failed to consider.


30. After studying the pleadings, evidence, and submissions of counsel, I am not satisfied that the Plaintiff has an arguable case. In respect of the wrong State Lease, the evidence shows the Tender for the subject land issued by the Department of Lands, and gazetted on 1st November 2012, was for Public Institutional (Public Toilets) Purpose. The Plaintiff applied for and was granted a Special Purpose Lease for public toilets as advertised. There is no other documentary evidence to the contrary. That is, there is no evidence that shows that the application for lease by the Plaintiff was made for the grant of a Commercial/Business Lease. If that was the intention of the Plaintiff, it would go contrary to the arrangements that the Plaintiff had with the second Defendant, the Lae City Authority, under the Memorandum of Agreement. The municipal functions like the public toilets are activities that fall within the domain of the second Defendant who contracted the management functions to the Plaintiff. It would be reasonably expected that the proprietorship of property that houses the public utilities like the public toilets would remain with the governmental authorities like the second Defendant. The Special Purposes Lease for public toilets would be naturally granted to the second Defendant and not the Plaintiff. That said, if the Plaintiff was not happy that it was granted a wrong lease, it could have followed due process under the Land Act for correcting any error. In any case, it is not a relevant issue before this Court for review.


31. Turning to the next issue, the evidence shows the Plaintiff constructed a few buildings for commercial purposes at the site where it was managing the public toilet facilities. The additional structures were constructed without approval from the first Defendant. After notice for demolition, the structures were eventually demolished. Meanwhile the fifth Defendant issued a Notice to Show Cause why the State Lease should not be forfeited. The reasons for the forfeiture notice were that the Plaintiff failed to comply with the lease conditions and for forwarding misleading information when it applied for the lease. The Plaintiff forwarded a reply through its lawyers on 18th August 2020. The forfeiture was issued on 14th September 2020. The reasons for forfeiture are again for failure to comply with the lease conditions and for failing to comply with the Notice to Show Cause.


32. The evidence shows that after the demolition of the illegal structures, it seems the property was left without any tangible improvements to the value of K 500,000.00. There is no evidence to show that the Plaintiff has been paying the State Lease rental for the years 2017 to 2020. The fifth Defendant is entitled to forfeit the State Lease as allowed by section 122(1) of the Land Act and the Plaintiff (in the present case) failed to establish an arguable case for the purposes of this matter proceeding to a judicial review hearing of an administrative decision.


Conclusion


33. In conclusion, the Court has reached a decision that the Plaintiff’s application for leave to apply for judicial review be refused for the following reasons:

i. there is undue delay.

ii. the application is an abuse of process.

iii. Lack of arguable case


Cost


34. Cost is discretionary. The application is for leave only. The State has actively participated in the hearing and is therefore entitled to its costs.


Orders


35. The Court orders that:


  1. The Plaintiff’s application for leave for judicial review is refused.
  2. The Plaintiff shall pay the cost of the proceedings to be taxed, if not agreed.
  1. Time be abridged.

_______________________________________________________________

Don Wapu Lawyers: Lawyers for the Plaintiff

Solicitor General: Lawyers for the Third, Fourth, Fifth & Sixth Defendants

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2024/10.html