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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS (JR) NO. 33 OF 2025
BETWEEN:
KWILA CORPORATION LIMITED
Plaintiff
AND:
HON. POWES PARKOP as the Chairman of the National Capital District Physical Planning Board
First Defendant
AND:
NATIONAL CAPITAL DISTRICT PHYSICAL PLANNNG BOARD
Second Defendant
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
AND:
SEA PARK DEVELOPMENT LIMITED
Fourth Defendant
WAIGANI: DOWA J
14, 21 MAY 2025
PRACTICE & PROCEDURE – Originating Summons – Order 16 Rule 3 (1) & (2) NCR- Application for leave to apply for Judicial review – application to review decision of National Capital District Physical Planning Board approving development plans of the old Sea Park likely to impede ocean views of the Plaintiff’s tenants-whether Plaintiff has sufficient interest-whether grounds exist for leave- there is arguable case disclosed- application for leave granted.
Cases cited
NTN v PTC [1987] PNGLR 70
Asakusa v Kumbakor (2008) N3303
Danley Kotapu v David Manning & Others (2025) N11282
Counsel:
E Asigau for the plaintiff
M Narakobi for the defendants
RULING
Brief Facts
Documents
6. The Plaintiff relies on the following documents:
(a) Originating Summons filed 7th April 2025
(b) Statement Under Order 16 Rule 3(2)(a) of the National Court Rules (Doc#2); and
(c) Affidavit of Jason McIlvena sworn on 14 April 2025 and filed on 15 April 2025 (Doc#4).
(d) Affidavit Verifying Facts of Jason McIlvena sworn on 14 April 2025 and filed 15 April 2025 (Doc#5).
The hearing
7. The application was heard on 14th May 2025. Ms. Narakobi, counsel for the State Defendants, opposed the application on the basis that the Plaintiff has not produced evidence to establish that it has sufficient interest and an arguable case.
Issue
8. The main issue for consideration is whether the Plaintiff be granted leave to apply for judicial review.
Law
9. The principles applicable to an application for leave to apply for judicial review are settled in this jurisdiction: refer NTN v PTC (1987) PNGLR 70 and Asakusa v Kumbakor (2008) N3303. The Court has a discretion to grant leave where the Court is satisfied as to the following considerations:
10. On the use of discretion, the Court in NTN v PTC, said this at page 7 of the judgment:
“Applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest (O 16, r 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, r 3(1).
In exercising its discretion, the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, Lord Diplock set out the principles upon which the Court should act and I respectfully adopt them. Lord Diplock said (at 644):
"If, on a quick perusal of the material then available, the court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application."
11. I will now turn to the present case to consider whether the Plaintiff has met the prerequisites for leave to apply for judicial review.
12. Does the Plaintiff have sufficient interest. The Plaintiff’s properties are adjacent to the fourth Defendant’s land, Portion 3610. The Plaintiffs lands are on elevated part of the Paga Hill while the part of the fourth Defendants land is near the waterfront. The Plaintiff alleges that the approved development plans once implemented are likely to obstruct the ocean view currently enjoyed by the Plaintiff’s tenants. This, the Plaintiff submits, will result in the Plaintiff losing tenants and income by 40%. The Plaintiff therefore argues that it is directly affected by the decision of the second Defendant.
13. It is noted that the Plaintiff’s property covers a combined area of 0.9344 hectares while the fourth defendants State Lease contains a massive 4.195 hectares. There is not enough evidence to suggest how the Plaintiff’s interests are affected by the decision of the second Defendant. There is not enough evidence as to the location of the tall buildings which might obstruct the Plaintiff’s tenant’s ocean view. What is clear though is the Plaintiff’s properties are adjacent to and directly at the back end of the proposed buildings. To this extent, it is more probable than not that the second Defendant’s decision will have a direct impact on the Plaintiff’s enjoyment of the ocean view and result in reduced income. I find the Plaintiff being registered proprietor of properties likely to be affected by the impact projects, has sufficient interest.
b) Undue delay
14. The first decision was made in November 2020. The second decision was made in May 2024. The Plaintiff submits it was not aware of the decisions until October 2024, although it was aware of the development plans. The Plaintiff says it made objections to the Defendants as early as August 2020. The Plaintiff’s concerns were raised both through correspondence and personal attendances. The Plaintiff made further pleas after it was served copies of the decision in October 2024. The Plaintiff filed these proceedings on 7th April 2025 well outside of the four months prescribed by Order 16, Rule 3 (5) of the NCR. The Plaintiff explains that one of the reasons for the delay was it could not conduct a search at the Department of Lands & Physical Planning as the relevant file could not be located.
15. The National Court Rules prescribes 4 months within which an application for judicial review can be filed. However, the National Court has a discretion to extend that period provided the applicant provides a reasonable explanation for the delay. The Plaintiff filed the proceedings about seven months from the May 2024 decision. I accept the explanation provided by the Plaintiff and note that the delay is not unreasonable. It is not as though the Plaintiff did nothing.
c) The applicant must have an arguable case.
16. Apart from sufficient interest, the next important consideration is whether an applicant has an arguable case. That is the applicant has raised important, serious or substantive points of law and or facts which require judicial determination. In the present case, the Plaintiff raises the following grounds:
a. breach of natural justice under section 59 of the Constitution.
b. failure to consider relevant factors
c. unreasonable decision under the Wednesbury principles
d. decision harsh and oppressive under section 41 of the Constitution
17. The Plaintiff submits that the defendants, despite being aware of the Plaintiff’s interests and concerns that approvals given for development of the fourth Defendant’s property would adversely affect the interests of the Plaintiff, failed to give the Plaintiff an opportunity to address its concerns before the development plans were approved.
18. The Plaintiff is not an applicant who has the immediate right of audience before the second Defendant. There is no evidence of any statutory obligation on the part of the second Defendant to inform the Plaintiff of its proceedings. However, the Plaintiff, after being aware of the impact projects, made representations to the Defendants to be given an opportunity to be heard, especially the second decision of May 2024. Since the proposed development is likely to have an impact on the surrounding areas including the Plaintiff, opportunities be given to people likely to be affected by the proposed development to present their views before decision is taken. It is therefore arguable that the Plaintiff was denied that opportunity by the first and second Defendants.
19. The Plaintiff argues that the Defendants failed to consider that the proposed buildings exceeding 10 storeys will impede and obstruct the ocean view of the tenants of the Plaintiff and reduce the value of the Plaintiff’s properties. That the Defendants considered irrelevant factors when approving the development plans.
20. The submission by the Plaintiff that the proposed buildings will obstruct the ocean view, and such obstruction will reduce the value and income of the Plaintiff is not supported by evidence at the time of this application. However, the Court cannot rule out the possibility that might well be the case. It is possible that the matters raised by the Plaintiff are factors that the first and second Defendants should have considered but failed to consider in their deliberations or that the Defendants considered irrelevant matters which may adversely affect the interests of the Plaintiff. The Plaintiff be allowed to present its case before a substantive hearing.
c. unreasonable decision under the Wednesbury principles
21. The Plaintiff submits that the decision of the second Defendant was unreasonable, in that the Defendants failed to notify the public, including the Plaintiff of the proposed development plans.
22. There is no direct evidence that the Defendants were under any statutory duty to inform the public including the Plaintiff of the proposed development plans. However, as alluded above, the proposed developments plans when implemented will be impact projects, affecting the surrounding areas and the general outlook of the current Paga Hill. A decision that disregards the adverse impact it would have on the surrounding areas would be an unreasonable decision. At this stage, there is insufficient evidence that the decision of the second Defendant is unreasonable. It is a matter for the parties to present their cases at the appropriate time. Suffice for now to say that the Plaintiff has an arguable case.
d. decision harsh and oppressive under section 41 of the Constitution
23. The Plaintiff submits that the decision is harsh and oppressive under section 41 of the Constitution. Section 41 of the Constitution provides that ...an act is harsh or oppressive or
(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the
rights and dignity of mankind, is an unlawful act.
24. Section 41 is a qualified right enforceable under Section 57 of the Constitution. There is no evidence of the breach of this constitutional right, except for the comments made above.
Conclusion
25. The Court has a discretion whether to grant or refuse an application for leave to apply for judicial review. The Court shall exercise its discretion judicially. This is what I stated in my recent decision in the case, Danley Kotapu v David Manning & Others (2025) N11282:
“Finally, the Court is mindful that the Plaintiff should not be driven from the judgment seat prematurely. This is especially so in applications for leave to apply for judicial review. If there is a shred of argument that the Plaintiff might have and which, with the filing of additional documentation, improve his chances in a substantive hearing, the Court would and should allow him to present his case. However, if it becomes clear and obvious that the Plaintiff is unlikely to succeed in his substantive application, the Court should not give a false impression that the Plaintiff will somehow succeed.”
26. In the present case, the Plaintiff has demonstrated that its interest has been affected by the decision of the first and second Defendants. Where there is want of evidence, this could be improved by the presentation of evidence by the parties during proceedings. For now, I am satisfied that the Plaintiff has an arguable case and should be allowed to proceed to a substantive review.
ORDERS
27. The Court orders that:
Lawyers for the plaintiff: Pacific Legal Group Lawyers
Lawyer for the defendants: Solicitor General
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URL: http://www.paclii.org/pg/cases/PGNC/2025/182.html