SC1172

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 6 0F 2010

PEPI KIMAS, AS DELEGATE OF THE MINISTER FOR LANDS
First Appellant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Appellant

V

BOERA DEVELOPMENT CORPORATION LIMITED
First Respondent

APAU BESENA COMPANY LIMITED
Second Respondent

NAMONA OALA AND IGO NAMONA OALA FOR AND ON BEHALF
OF IDUATA GUBAREI NO 2 CLAN OF BOERA VILLAGE
Third Respondent

MOI ENO AND OALA MOI FOR AND ON BEHALF OF
KOKE GUBAREI NO 1 CLAN OF BOERA VILLAGE
Fourth Respondent

Waigani: Cannings, Manuhu & Kassman JJ
2012: 28 February, 12 March

JUDICIAL REVIEW – applications for leave for judicial review – standing: "sufficient interest in the matter to which the application relates" – whether Minister should be named as a defendant where leave sought re decision of delegate of Minister – whether claims that particular provisions of Act of Parliament are unconstitutional can be included in a judicial review – need for applicant to exhaust administrative remedies – whether undue delay in making application for leave – whether procedural requirements under Order 16 met – effect of application for leave seeking declarations and orders that bear no direct connection to the matter to which the application relates.

APPEALS – consequence of upholding one or more grounds of appeal – discretion of Supreme Court as to orders on appeal – civil appeals – Supreme Court Act, Sections 6 (appeal to be by way of rehearing), 16 (decision etc on appeal). 

This was an appeal against the decision of the National Court to grant leave to the respondents for judicial review of a declaration by the Secretary for Lands and Physical Planning, as delegate of the Minister for Lands and Physical Planning, under Section 5 of the Land Act, to deem two portions of land "not to be customary land". The appellants raised 19 grounds of appeal. They argued that the primary Judge erred in granting leave despite the respondents lacking standing, the Minister not being named as a defendant, the respondents making constitutional claims (eg that certain provisions of the Land Act are unconstitutional), the respondents not exhausting other rights or remedies, delay by the respondents in bringing the proceedings, the respondents' failure to comply with requirements of practice and procedure in Order 16 of the National Court Rules and the respondents seeking relief beyond the subject matter of the proceedings.

Held:

(1)	Six of the grounds of appeal were upheld; those relating to the respondents' constitutional claims, the respondents' failure to comply with requirements of practice and procedure in Order 16 of the National Court Rules and the respondents seeking relief beyond the subject matter of the proceedings.

(2)	Thirteen grounds of appeal were dismissed as they disclosed no errors of law by the primary Judge, especially as the decision whether to grant or refuse leave is a matter of discretion and the primary Judge had, except for errors of law established by the successful grounds of appeal, exercised the discretion judicially.

(3)	Determination of an appeal by the Supreme Court involves a two-step decision-making process. The Court first decides whether one or more of the grounds of appeal are upheld. If yes, it proceeds to exercise its discretion as to what relief, if any, should be granted (Dale Christopher Smith v Minister for Lands & Ors (2009) SC973 applied).

(4)	Here the errors of law were not so serious as to pervade the decision to grant leave, so the Supreme Court declined to make an order that would reverse the order granting leave but instead quashed the order granting leave in general terms and substituted it with an order granting leave that restricts the grounds of judicial review and the relief sought to those that may properly be before the National Court.

Cases cited

The following cases are cited in the judgment:

Brian Michael Costello v Controller of Civil Aviation [1977] PNGLR 229
Dale Christopher Smith v Minister for Lands & Ors (2009) SC973
Eddie Tarsie v Dr Wari Iamo (2010) N4033
Ene Land Group Inc v Fonsen Logging (PNG) Pty Ltd [1998] PNGLR 1
Haiveta v Wingti (No 1) [1994] PNGLR 160
Justice Mark S Sevua v Ano Pala (2011) N4336
Kekedo v Burns Philip [1988-89] PNGLR 122
Lowa v Akipe [1992] PNGLR 399
Madaha Resena and Others v The State [1991] PNGLR 174
Magiten v Beggie (2005) N2908
Newsat Ltd v Telikom PNG Ltd (2007) N3448
NTN Pty Ltd v PTC [1987] PNGLR 70
Olasco Nuigini v Kaputin [1986] PNGLR 244
Pora v Leadership Tribunal [1997] PNGLR 1
Simon Mali v The State (2002) SC690
Soso Tomu v The State [1996] PNGLR 101
Tarsie v Ramu Nico Management (MCC) Limited (2010) N4141
Tigam Malewo v Keith Faulkner (2009) SC960
Tolain & Ors v Administration [1965-66] PNGLR 232
Vincent Ulelio v Nelulu Land Group, Registrar of Titles and The State [1998] PNGLR 31
Zachary Gelu v Sir Michael Somare MP (2008) N3524
Zeming v Justice Timothy Hinchliffe (2005) SC791

APPEAL

This was an appeal against the grant of leave for judicial review.

Counsel

I R Molloy & D Wood, for the appellants
R Mann-Rai, for the respondents

12 March, 2012

1. BY THE COURT: This is an appeal against the decision of the National Court constituted by Justice Gavara-Nanu to grant leave for judicial review. His Honour on 13 October 2009 granted leave to the respondents to apply for judicial review of a declaration by the first appellant, Pepi Kimas, under Section 5 of the Land Act, that two portions of land be deemed "not to be customary land".

2. The land in question is actually an area of the seabed. It is described as 'all that piece of land below the high water mark of Caution Bay described as Portions 2457C and 2458C … containing an area of 359.93 and 931.56 hectares respectively', a total of 1,291.49 hectares, situated between Boera and Papa villages in the West Hiri area of Central Province. It is in the vicinity of Portion 152, one of the development sites of the PNG LNG Project. Mr Kimas was at the date of the declaration, 10 March 2009, and the date of its publication in the National Gazette, No G70 of 2009, 17 April 2009, the Secretary of the Department of Lands and Physical Planning and a delegate of the Minister for Lands and Physical Planning.

3. Mr Kimas and the State have appealed against the granting of leave for judicial review on 19 grounds.

GROUND (a): FIRST AND SECOND RESPONDENTS HAVE NO STANDING

4. The appellants argue that the primary Judge erred by granting leave to the first and second respondents, Boera Development Corporation Ltd ("BDC") and Apau Besena Company Ltd ("Apau Besena"), as they have no standing. It is a prerequisite to the granting of leave that an applicant has standing (Olasco Nuigini v Kaputin [1986] PNGLR 244, NTN Pty Ltd v PTC [1987] PNGLR 70). The appellants say that BDC and Apau Besena have no interest in the land the subject of the declaration of 10 March 2009. The only connection that they have to the land is that they are companies proposed by Mr Peter Donigi of Warner Shand Lawyers (the respondents' lawyers) and some local customary landowners as vehicles for implementation of the so-called Donigi Plan for customary land registration, and they have applied to the Minister for granting of a lease to Apau Besena and a lease-back to BDC. Under the Donigi Plan outlined in a letter dated 11 March 2009 from Warner Shand to the Minister for Lands and Physical Planning, it was proposed that:

•	an area of customary land of 27,293 hectares (part of which includes the area of 1,291.49 hectares, the subject of the declaration) comprising the seabed and water column between Boera and Papa, would be leased by the Minister (for the purposes of granting a special agricultural and business lease) from Apau Besena (representing the customary landowners);

•	the lease would be executed under Section 11 (acquisition of customary land for the grant of special agricultural and business lease) of the Land Act and become conclusive evidence that the State has good title to the lease, subject to the condition that the State lease-back the land to Apau Besena's nominee, BDC;

•	the lease-back would be effected under Section 102 (grant of special agricultural and business leases) of the Land Act: the Minister would grant a special agricultural and business lease to BDC.

5. In addition to their prime argument that BDC and Apau Besena have no interest in the land the subject of the declaration, the appellants emphasise that:

•	the applications under the Donigi Plan are not the subject of the judicial review;
•	their applications were made after Mr Kimas's declaration;
•	BDC and Apau Besena are not the proper persons to be making such applications;
•	the applications are in any event deficient as they were not supported by or made on the instructions of all customary landowners.

6. We agree with the appellants' submission that it is essential for an applicant for leave for judicial review to establish standing or more correctly to satisfy the National Court that it has a "sufficient interest". This requirement emerges from Order 16, Rule 3(4) of the National Court Rules, which states:

The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

7. The sufficient interest that must be established is "in the matter to which the application relates". In the present case "the matter" is Mr Kimas's Section 5 declaration. We agree that "the matter" is not the applications of 10 March 2009. However, we consider that in respect of the Section 5 declaration Apau Besena and BDC do have a special interest arising from the applications made to the Minister on 10 March 2009 and the proposal of the Donigi Plan to the Minister, covering an area of 27,293 hectares, part of which was the area of 1,291.49 hectares, the subject of the declaration. The fact that BDC and Apau Besena had no legal interest in the land does not mean that they had no interest in the declaration. They had a genuine interest in it as it appears that it had the effect of impairing the applications made on their behalf before the applications had been determined.

8. The appellants make much of the timing of the events: Mr Kimas's declaration was made on 9 March 2009, and the applications (under cover of the letter from Warner Shand) were made the next day, 10 March 2009; and the suggestion seems to be made that the applications were in response to the declaration. But the dates are a little misleading. The declaration was not published in the National Gazette until 17 April 2009, five weeks after the applications were made, so the reasonable inference is that the applications were made without knowledge of the declaration. We note that the applications involved a complex set of documents, so it would seem reasonable to infer that the Donigi Plan proposal and the applications were being developed over a substantial period before 9 March 2009.

9. As to whether BDC and Apau Besena are proper persons to be making applications for a lease and lease-back arrangement to be effected under Sections 11 and 102 of the Land Act and whether the applications are deficient, these are not the sort of matters that need be decided in an application for leave to seek judicial review. 

10. Far more important is the impression to be gained from a quick perusal of the documents put before the National Court that BDC and Apau Besena had been incorporated as vehicles for implementation of a genuine proposal to the Minister for Lands by some customary landowners. The interests of BDC and Apau Besena and therefore the interests of customary landowners were inevitably affected by Mr Kimas's declaration. That gave BDC and Apau Besena a sufficient interest in the subject matter of the proceedings. Ground (a) is therefore dismissed.

GROUND (b): NO EVIDENCE THAT ANY OF THE RESPONDENTS HAD STANDING

11. The appellants argue that affidavits by Mr Donigi and Daro Avei, filed in support of the application for leave to seek judicial review, failed to disclose that any of the respondents had standing.

12. We disagree. Mr Donigi deposed that he was the sole director of BDC and the designer of the Donigi Plan for registering customary land and that he was verifying the facts in the statement filed in support of the application for leave to seek judicial review under Order 16, Rule 3(2)(a) of the National Court Rules. Mr Avei deposed that he was a retired public servant and a fisherman at Boera, that he had been liaising between the third and fourth respondents, that he supported the Donigi Plan and was fully aware of the circumstances leading to lodgement of the applications of 10 March 2009 to the Minister, that he had read the Order 16, Rule 3(2)(a) statement and that he verified the facts in it. These affidavits complied with the requirement in Order 16, Rule 3(2)(b) for verifying affidavits and were evidence that all the respondents had standing. Ground (b) is dismissed.

GROUND (c): INABILITY OF RESPONDENTS TO ASSERT CUSTOMARY LAND RIGHTS OVER THE SEABED, SEA OR WATER COLUMN

13. The appellants argue that the primary Judge erred by granting leave as the respondents were seeking to enforce customary land rights over an area of the seabed, the sea and the water column, which is not permissible under the land law of Papua New Guinea. The argument appears to be that "land" in the Land Act refers to terrestrial land only, not the seabed.

14. That proposition is supported by two 1998 National Court decisions of Woods J, who was dealing with claims by customary landowners on the south coast of West New Britain for ownership of the sea waters abutting the coastline (Ene Land Group Inc v Fonsen Logging (PNG) Pty Ltd [1998] PNGLR 1, Vincent Ulelio v Nelulu Land Group, Registrar of Titles and The State [1998] PNGLR 31). In both cases his Honour held that under the common law adopted as part of the underlying law at Independence the sea is a "public highway". There is a common domain in the coastal seas and within the territorial waters of PNG, and this domain is held by the State. There are customary rights to reefs and marine resources (Tolain & Ors v Administration [1965-66] PNGLR 232), but there has never been in PNG any recognition of any absolute possessory title in individuals or groups to the sea for all purposes. His Honour held that the common law is clear and no legislation, including the Land Act and the Land Registration Act, has changed it: there is no customary ownership of the sea.

15. They were decisions of the National Court, so the primary Judge was not bound to follow them. Interestingly Woods J's decisions were made prior to the commencement of the Underlying Law Act 2000. Before its commencement it was not entirely clear that custom, which arguably recognises ownership of the sea, seabed and water column, was a superior source of underlying law to common law (Madaha Resena and Others v The State [1991] PNGLR 174). But superiority of custom over common law has been clarified by the Underlying Law Act, Sections 4(3)(c), 6, 7(3) (Magiten v Beggie (2005) N2908). 

16. The primary Judge was not bound to follow any Supreme Court decision on the issue, as there appears to be none. Neither side of the appeal has drawn our attention to any Supreme Court decision, either in support of the proposition advanced by the appellants or against it. The Land Act does not appear to expressly exclude recognition of customary ownership of the territorial sea, so it cannot be said that the respondents' position is untenable. We consider that it is arguable that customary landowners can claim ownership of the sea.

17. If the opposite were the case and it were settled law that there can be no customary ownership of the sea, why would the Secretary for Lands have made a declaration under Section 5 covering Portions 2457C and 2458C? The purpose of Section 5 is to provide for clarification that an area of "land" is State land. It states:

(1)	The Minister may, by notice in the National Gazette, declare that any land that appears to him not to be customary land shall, unless good cause is shown to the contrary, be conclusively deemed for all purposes, at the expiration of three months from the date of publication of the notice, to be State land. [Emphasis added]

(2)	A notice under Subsection (1) shall set out—

(a)	the name or names (if any) by which the land the subject of the notice is known; and
(b)	a description or plan of the land; and
(c)	the position of the land; and
(d)	an estimate of the area of the land,

and the Departmental Head shall immediately give a copy to the Custodian for Trust Land.

(3)	Subject to this section, on the expiration of three months from the date of publication of a notice under Subsection (1) the land shall be deemed conclusively for all purposes to be State land.

(4)	Where, before the expiration of three months from the date of publication of a notice under Subsection (1), a claim that the land the subject of the notice is customary land is made to the Minister by or on behalf of a citizen, the Minister shall refer the matter to the Land Titles Commission.

(5)	Where a claim is made under Subsection (4), the land the subject of the claim shall not be deemed to be State land until the Land Titles Commission has decided the claim, and—

(a)	where no application for review or appeal is made under the Land Titles Commission Act 1962—the period prescribed for applying for review or making an appeal has expired; and

(b)	where an application for review is made under that Act—the Commission has concluded the review and any re-hearing arising from it; and

(c)	where an appeal is made under that Act—the National Court has decided the appeal.

(6)	This Section does not affect a right, title, estate or interest in the land the subject of a notice under Subsection (1) in force under, or continued in force by, an Act.

18. Section 5 does not expressly provide for an area of sea to be declared "State land", yet all of Portions 2457C and 2458C is below the high water mark and therefore includes the sea. The fact that the Secretary thought it necessary or desirable to make the declaration suggests that it was within his contemplation that "land" includes the sea and that there could be a claim for customary ownership of Portions 2457C and 2458C.

19. Another notable feature of the Secretary's declaration of 9 March 2009 is that though it is said to be a declaration under Section 5, it is not expressed in the terms of Section 5. The declaration states:

DECLARATION UNDER SECTION 5

I, Pepi S Kimas OL, a delegate of the Minister for Lands and Physical Planning by virtue of the powers conferred by Section 5 of the Land Act No 45 of 1996 and all other powers me enabling, hereby declare that the land referred to in the schedule shall, unless good cause is shown to the contrary, be conclusively deemed for all purposes, at the expiration date of three (3) months from the date of publication of this notice in the National Gazette, not to be customary land. [Emphasis added]

SCHEDULE

All that piece of the land below the high water mark of Caution Bay described as Portions 2457C and 2458C, Milinch of Granville, Fourmil of Moresby, Central Province containing an area of 359.93 and 931.56 hectares respectively or thereabouts as delineated on registered survey plan catalogue number 49/2690 in the Department of Lands and Physical Planning, Port Moresby, National Capital District.

20. The effect of the notice is that it deems Portions 2457C and 2458C "not to be customary land", but Section 5 only allows that land be deemed "to be State land". It would seem arguable that the declaration of 9 March 2009 has not been made in accordance with Section 5. Yet another curious aspect of the notice is that it does not mention that Portions 2457C and 2458C 'do not appear to be customary land'. It would seem arguable that for a proper declaration to be made under Section 5 the Minister (or his delegate the Secretary) must state that the land the subject of the notice "appears to him not to be customary land". The formation of that opinion triggers the power to make the declaration. There would appear to be an argument that such an opinion was not formed in the present case and there was no power to make the declaration.

21. All of these considerations suggest that a number of important points of law arise from the respondents' claim to customary ownership of the sea, the seabed and water column. It cannot be said that they did not have an arguable case. When the National Court determines an application for leave it does not determine the merits of the case. Its inquiry into the merits is restricted to assessing whether on a quick perusal of the material available the Court thinks that it discloses what might on further consideration turn out to be an arguable case (Pora v Leadership Tribunal [1997] PNGLR 1, Zeming v Justice Timothy Hinchliffe (2005) SC791, Justice Mark S Sevua v Ano Pala (2011) N4336). We are satisfied that the primary Judge undertook that sort of inquiry and it was open to his Honour to conclude that the material disclosed what on further consideration might turn out to be an arguable case that the respondents could enforce customary land rights over an area of the seabed, the sea and the water column. Ground (c) is dismissed.

GROUND (d): UNAUTHORISED VERIFYING AFFIDAVITS

22. The appellants argue that because the first and second respondents, BDC and Apau Besena, lacked standing, Mr Donigi and Mr Avei, who are both connected with the first and second respondents, were not authorised to verify the Order 16, Rule 3(2)(a) statement.

 23. We dismissed ground (a) as we concluded that neither BDC nor Apau Besena lacked standing. Ground (d) is linked to ground (a). It could only succeed if ground (a) were decided in favour of the appellants. Ground (d) is dismissed.

GROUND (e): GROUNDS AND RELIEF SOUGHT REGARD CONSTITUTIONAL VALIDITY OF LAND ACT

24. The appellants point out that the respondents in their Order 16, Rule 3(2)(a) statement included a number of constitutional claims, in particular they seek a declaration that Sections 5 and 132 (disposal of customary land) of the Land Act are unconstitutional on various grounds. The appellants argue that it is not permissible to seek such relief in an application for judicial review under Order 16 of the National Court Rules. If the National Court were to determine any question relating to the interpretation and application of the Constitutional Laws it would be offending against Section 18 (original interpretative jurisdiction of the Supreme Court) of the Constitution, which states:

(1)	Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

(2)	Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial or vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action, including the adjournment of proceedings, is appropriate.

25. The respondents had no effective answer to this argument, which we uphold without hesitation. The National Court has no original jurisdiction to entertain challenges to the constitutionality of legislation (Lowa v Akipe [1992] PNGLR 399, Haiveta v Wingti (No 1) [1994] PNGLR 160, Soso Tomu v The State [1996] PNGLR 101, Newsat Ltd v Telikom PNG Ltd (2007) N3448, Zachary Gelu v Sir Michael Somare MP (2008) N3524). We find, with respect, that to the extent that the learned primary Judge granted leave to the respondents to seek declarations as to the constitutional invalidity of provisions of the Land Act, his Honour erred in law. Ground (e) is upheld.

GROUND (f): NO EVIDENCE THAT UNNAMED PLAINTIFFS AUTHORISED COMMENCEMENT OF PROCEEDINGS

26. The appellants argue that the primary Judge erred by granting leave to the third respondent (Namona Oala and Igo Namona Oala) and the fourth respondent (Moi Eno and Oala Moi) as they purported to act in a representative capacity by stating that they commenced the proceedings on behalf of particular clans of Boera village but did not comply with procedural requirements for commencement of proceedings in a representative capacity.

27. The respondents had no effective answer to this argument, which we uphold without hesitation. The leading Supreme Court cases of Simon Mali v The State (2002) SC690 and Tigam Malewo v Keith Faulkner (2009) SC960 show that if a person puts himself forward as a plaintiff acting in a representative capacity for other persons:

•	all intended plaintiffs (those who he claims to represent) must be named in the originating process;

•	each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them;

•	any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.

28. These requirements apply to all proceedings in which a plaintiff wishes to prosecute a matter in a representative capacity, not just proceedings in which the primary relief sought is damages (Tarsie v Ramu Nico Management (MCC) Limited (2010) N4141). We find, with respect, that to the extent that the learned primary Judge granted leave to the respondents without directing them to rectify their failure to comply with the procedural requirements for commencement of representative proceedings, his Honour erred in law. Ground (f) is upheld.

GROUND (g): FAILURE TO MAKE CLAIM UNDER LAND ACT, SECTION 5(4)

29. The appellants argue that the primary Judge erred by granting leave to the respondents as they had not exhausted their administrative rights and remedies. It is a prerequisite to the granting of leave that an applicant exhaust all administrative remedies before approaching the court (Kekedo v Burns Philip [1988-89] PNGLR 122). The appellants say that there is an administrative remedy provided by Section 5(4) of the Land Act. A person aggrieved by a Section 5 declaration may within three months from the date of publication of the declaration lodge a claim with the Minister that the land the subject of the notice is customary land. Upon receipt of a claim the Minister is obliged to refer the matter to the Land Titles Commission and under Section 5(5) the land the subject of the notice shall not be deemed to be State land until the Commission has decided the claim.

30. We agree with the appellants' submission that an applicant for leave must exhaust their administrative remedies and that Section 5(4) provided the respondents with such a remedy. However, we consider that the respondents satisfied that requirement by virtue of a letter dated 14 June 2009 from their lawyers, Warner Shand, to Mr Kimas, which expressed the respondents' concerns over the Section 5 declaration and claimed that the land the subject of the declaration was customary land. A copy of this letter was included in the material placed before the primary Judge and justified his Honour's assessment that administrative rights and remedies had been exhausted. The fact that neither Mr Kimas nor the Minister had referred the matter to the Land Titles Commission does not defeat that assessment. Ground (g) is dismissed.

GROUND (h): ABSENCE OF EVIDENCE OF CLAIM UNDER THE LAND ACT, SECTION 5(4)

31. The argument here appears to be that there was no evidence before the National Court that the respondents made a claim under Section 5(4). A copy of the Warner Shand letter of 14 June 2009 (which we regard as a claim under Section 5(4)) was not in evidence, as such, as it was not annexed to either of the verifying affidavits that supported the application for leave. It was, however, an annexure to the Order 16, Rule 3(2)(a) statement.

32. We consider that it was irregular for the letter to be annexed to the Order 16, Rule 3(2)(a) statement, just as it was irregular for a number of other documents to be annexed to the statement – they should have been annexed to the verifying affidavits, not the statement. However, we do not consider that the primary Judge erred in law in granting leave without requiring this irregularity to be rectified. Ground (h) is dismissed.

GROUND (i): UNDUE DELAY

33. The appellants argue that the primary Judge erred by granting leave to the respondents despite them being guilty of undue delay in commencing the proceedings. It is a prerequisite to the granting of leave that an applicant file the application for leave without delay. As the respondents were seeking orders in the nature of certiorari a four-month time limit applied.

34. We agree that an applicant for leave must demonstrate that they have acted without undue delay and that where certiorari is sought the period of four months after the date of the decision that leave is sought to review is relevant. The material placed before the National Court suggested the following 2009 timeline:

•	9 March	:	Making of Section 5 declaration.
	
•	10 March	:	Warner Shand letter to Mr Kimas, proposing the Donigi Plan and a lease and lease-back arrangement.
	
•	17 April	:	Publication of notice in National Gazette.
	
•	14 June	:	Warner Shand letter to Mr Kimas, expressing concerns about Section 5 declaration and claiming that the land is customary land.
	
•	2 September	:	Commencement of proceedings: filing of application for leave to seek review.	

35. Assuming for the sake of the argument that certiorari was amongst the relief sought by the respondents (though the better view is that the principal relief sought was declarations) the four-month period would commence on 17 April and end on 17 August. It is not an absolute time limit, however. Its relevance in a particular case turns, as explained in Eddie Tarsie v Dr Wari Iamo (2010) N4033, on the application of Order 16, Rule 4 (delay in applying for relief) of the National Court Rules, which states:

(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 judgment, 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.

(3)	Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.

36. In the present case, if it is accepted that 17 August 2009 was the end of the relevant period, the respondents' application for leave was filed only 16 days later. This is hardly a situation in which 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. We find no error in the manner in which the primary Judge dealt with the issue of alleged delay. There was no undue delay. Ground (i) is dismissed.

GROUND (j): FAILURE TO GIVE NOTICE TO THE SECRETARY FOR JUSTICE

37. The appellants argue that the primary Judge erred by granting leave despite the respondents not complying with the requirements of Order 16, Rule 3(3) of the National Court Rules, which states:

The applicant must give notice of the application to the Secretary for Justice not later than two days before the application is made and must at the same time lodge with the Secretary copies of the statement and every affidavit in support.

38. The applicant for leave must therefore do two things at least two days before making the application:

•	give notice of the application to the Secretary for Justice;

•	lodge with the Secretary for Justice copies of the Order 16, Rule 3(2)(a) statement and all supporting affidavits.

39. The respondents had no effective response to the allegation that they met neither of those requirements. We find, with respect, that to the extent that the learned primary Judge granted leave to the respondents without taking into account that the respondents had not complied with the requirements of Order 16, Rule 3(3), his Honour erred in law. Ground (j) is upheld.

GROUND (k): NO EVIDENCE OF LODGING ORDER 16, RULE 3 STATEMENT WITH SECRETARY FOR JUSTICE

40. This ground is closely related to ground (j). The argument appears to be that his Honour erred by not insisting that there be evidence of compliance with the requirements of Order 16, Rule 3(3). As we upheld ground (j), it follows that ground (k) is also upheld.

GROUND (l): FAILURE TO NAME MINISTER AS DEFENDANT

41. The appellants argue that the primary Judge erred by granting leave without requiring the Minister for Lands and Physical Planning to be joined as a defendant. They say that though the declaration was made and published by the Secretary for Lands and Physical Planning, Mr Kimas, he did so as a delegate of the Minister, so the decision remained in law the decision of the Minister and the Minister should have been joined.

42. We see no merit in these arguments. The Secretary exercised the powers under Section 5 of the Land Act as a delegate of the Minister; and no suggestion has been made that he exceeded the ambit of his delegation in exercising those powers. But it does not follow from this that the decisions to make and publish the declaration were those of the Minister. The appellants relied on Brian Michael Costello v Controller of Civil Aviation [1977] PNGLR 229 to support that proposition but the facts of that case were very different from those in the present case as the decision-maker lacked a proper instrument of delegation. The decision-maker in the present case was lawfully delegated the powers of the Minister. The decision was made by the Secretary and he was properly named as the first defendant. It was unnecessary to join the Minister. The primary Judge did not err in the manner contended for. Ground (l) is dismissed.

GROUND (m): FAILURE TO SPECIFY PARTICULARS IN ORDER 16, RULE 3 STATEMENT

43. This is a vague ground of appeal. It is argued that the primary Judge "erred in law in granting leave to apply for judicial review where the statement under Order 16, Rule 3 of the National Court Rules failed to specify all necessary particulars, in particular paragraphs 20, 21, 23, 34, 35 and 38 of the statement". Neither written nor oral submissions shed any light on what this meant.

44. As we commented during the hearing of the appeal the Order 16, Rule 3(2)(a) statement was not drafted in a conventional form. Arguably it failed to meet the requirements of Order 16, Rule 3(2)(a), which are that it set out the name and description of the applicant, the relief sought and the grounds on which it is sought. The criticism we make of the statement is that it contains no clear and concise statement of the grounds of judicial review. The grounds are put forward in narrative form. A story is told which is more in the nature of a submission than a statement of grounds of judicial review. We are rather surprised that the appellants did not in a direct and meaningful way challenge the legal correctness of the statement and argue that it did not meet the requirements of Order 16, Rule 3(2)(a). As it stands, however, ground (m) is a confusing and meaningless ground of appeal and it is dismissed.

GROUND (n): RELIEF SOUGHT WAS BEYOND THE DECISION TO BE REVIEWED

45. The appellants argue that the primary Judge erred by granting leave despite the respondents including in their claim for relief a number of remedies that bear no direct relation to the decision that they were seeking leave to review. They are seeking, amongst other relief, a declaration that they are free to enter into commercial arrangements with investors in respect of the land, an order that the appellants cause to be registered under the Survey Act a survey plan that the respondents had lodged and an order that a State Lease be granted to the first and second respondents.

46. We agree that the relief sought in paragraphs 11, 13 and 14 of the Order 16, Rule 3(2)(a) statement goes well beyond the type of relief that could properly be granted, given that the subject of the application for leave was the decision of the Secretary to make the Section 5 declaration. We find, with respect, that to the extent that the learned primary Judge granted leave to the respondents to pursue relief that was not reasonably available, given the nature and extent of the decision for which leave to seek judicial review was being given, his Honour erred in law. Ground (n) is upheld.

GROUND (o): FAILURE TO SPECIFY THAT RELIEF SOUGHT WAS ONLY IN RELATION TO PART OF THE LAND

47. This ground of appeal relates to the description of the land appearing in the originating summons. The first schedule to the originating summons seems to attempt to describe the land as it described in the National Gazette but does so in a way that excludes Portion 2457C.

48. This appears to us to be a typographical error, which would render itself to simple amendment. However, to the extent that the learned primary Judge granted leave to the respondents in circumstances where the respondents either misdescribed the land or failed to particularise that the relief sought was only in relation to part of the land described in the declaration and notice in the National Gazette, his Honour erred in law. Ground (o) is upheld.

GROUND (p): INCLUDING IRRELEVANT MATERIAL IN ORIGINATING SUMMONS

49. The appellants argue that the trial Judge erred by granting leave despite the inclusion of irrelevant material in the originating summons, namely a "second schedule" that described the land area of 27,293 hectares which was the subject of the Donigi Plan proposal of 10 March 2009.

50. We agree that the inclusion of the material was irregular but we do not consider that this means that his Honour erred in law by allowing it to remain in the originating summons. Ground (p) is dismissed.

GROUND (q): LEASE AND LEASE-BACK APPLICATION IMPROPER DUE TO TIMING AND LACK OF LANDOWNER CONSENT

51. The appellants argue that the primary Judge erred by granting leave despite one of the respondents' primary grounds of judicial review lacking merit. The respondents were seeking leave to argue that the Secretary was estopped from publishing the Section 5 declaration after having received the Donigi Plan proposal of 10 March 2009; however, that proposal was only made by a small group of persons who were purporting to act on behalf of only two clans, which they admitted did not include all the customary landowners.

52. We appreciate the point that the appellants are raising but we consider that to uphold the argument would be to descend into the merits of the judicial review. The primary Judge made no error in forming the view that the material brought before the National Court disclosed an arguable case. Ground (q) is dismissed.

GROUND (r): LEASE AND LEASE-BACK APPLICATION IMPROPER DUE TO IT RELATING TO SEA AND SEA-BED

53. This is a rehash of ground (c). The argument that the respondents could establish no arguable case that customary landowners could enter into a lease and lease-back arrangement over the sea and sea-bed has no merit. Ground (r) is dismissed.

GROUND (s): DONIGI PLAN NOT A LEGALLY RECOGNISED SYSTEM OF LAND REGISTRATION

54. The appellants argue that the Donigi Plan is not a legally recognised system of land registration. We fail to see the relevance of this argument. Whether the Donigi Plan is legally recognised or not had no bearing on the primary Judge's decision whether to grant leave for judicial review. Ground (s) is dismissed.

WHAT ORDERS SHOULD BE MADE?

55. We have upheld six grounds of appeal, grounds (e), (f), (j), (k), (n) and (o), which relate to the respondents' constitutional claims, the respondents' failure to comply with requirements of practice and procedure in Order 16 of the National Court Rules and the respondents seeking relief beyond the subject matter of the proceedings.

56. We have dismissed 13 grounds of appeal: grounds (a), (b), (c), (d), (g), (h), (i), (l), (m), (p), (q), (r) and (s). They disclosed no errors of law by the primary Judge, especially as the decision whether to grant or refuse leave is a matter of discretion and the primary Judge had, except for errors of law established by the successful grounds of appeal, exercised the discretion judicially.

The appeal will therefore be partially allowed and partially dismissed.

57. As to what consequences flow from this, determination of an appeal by the Supreme Court involves a two-step decision-making process. It first decides whether one or more of the grounds of appeal are upheld. If they are, it proceeds to exercise its discretion as to what relief, if any, should be granted (Dale Christopher Smith v Minister for Lands &Ors (2009) SC973). In a civil appeal the Court's discretion is exercised under Section 16 (decision etc on appeal) of the Supreme Court Act, which states:

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may—

(a)	adjourn the hearing from time to time; or

(b)	affirm, reverse or modify the Judgement; or

(c)	give such judgment as ought to have been given in the first instance; or

(d)	remit the case in whole or in part for further hearing; or

(e)	order a new trial.

58. Section 6(2) of the Supreme Court Act is a complementary source of power. It states:

For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.

59. We will exercise the powers in Sections 6(2) and 16(1)(c). We do not consider that the errors of law exposed by the successful grounds of appeal were so serious as to pervade the decision to grant leave, so we decline to make an order that would reverse the order granting leave. Instead we will quash the order of the primary Judge, which granted judicial review in general terms, and substitute it with a new order, which will remove much of the respondents' constitutional claims and restrict the grounds of judicial review and the relief sought to those that may properly be before the National Court in an application for judicial review under Order 16 of the National Court Rules.

COSTS

60. Costs will follow the event in the sense that the appellants, whose appeal was largely unsuccessful, will pay the respondents' costs, except that the costs that would normally be awarded to the respondents will be discounted by 50% due to the failure of the respondents' lawyers to comply with a direction for filing before the hearing of the appeal of a written extract of argument.

ORDER

(1)	The appeal is partially allowed and partially dismissed in that the grounds of appeal allowed are those at paragraphs (e), (f), (j), (k), (n) and (o) of the notice of motion filed 7 May 2010 and the grounds of appeal dismissed are those at paragraphs (a), (b), (c), (d), (g), (h), (i), (l), (m), (p), (q), (r) and (s) of the notice of motion filed 7 May 2010.

(2)	The order of the National Court of 13 October 2009 in OS No 485 of 2009 is quashed and substituted by the following:

Leave is granted to the plaintiffs to apply for judicial review of the declaration by the first defendant under Section 5 of the Land Act published in National Gazette No G70 of 17 April 2009, in accordance with the statement under Order 16, Rule 3(2)(a) of the National Court Rules filed on 2 September 2009, except that, and without prejudice to the powers of the National Court under Order 16, Rule 6(2) of the National Court Rules:

(a)	the relief sought by the plaintiffs shall not include the relief sought in paragraphs 7, 9, 10, 11, 13 and 14 of the statement; and

(b)	the grounds on which relief is sought shall not include the grounds set out in paragraph 37 of the statement.

(3)	The appellants shall pay 50 per cent of the respondents' costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.
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Blake Dawson Lawyers: Lawyers for the Appellants 
Warner Shand Lawyers: Lawyers for the Respondents