SC1591

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 27 of 2016

BETWEEN:
PAUL UNAS,
General Manager, National Maritime Safety Authority
First Applicant

AND:
NAFFIZUL HOSSAIN,
Manager, Survey & Inspections, National Maritime Safety Authority
Second Applicant

AND:
NATIONAL MARITIME AND SAFETY AUTHORITY
Third Applicant

AND:
RABAUL SHIPPING LIMITED
Respondent

Waigani: Injia CJ
2017:  May 29

JUDICIAL REVIEW - Leave for review - From findings of fact - Principles - Exceptional circumstances - Serious questions raised showing manifestation of substantial injustice - Leave granted -  Constitution, s 155(2)(b); Supreme Court Rules, O 5 r 1. 

Cases Cited

Joseph Taleokon v Jeffrey Apakali & Fr.Paul Pakau (2013) SC1306.
Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120 
Luke Marano v Jack Nouari & The State (2013) SC1307
State v Toka Enterprises Ltd (2013) SC 1346, 

Counsel:
T Cooper, for the Applicants
J Marubu, for the Respondent

29 May, 2017
1.	INJIA CJ:  This is an application for leave to apply for review of a decision of the National Court sitting at Kokopo made on 16 February 2016. It is made under O 5 r 1 of the Supreme Court Rules 2012 and s 155(2)(b) of the Constitution. 

Background

2.	 In the decision, the National Court granted an application for judicial review made under O 16 of the National Court Rules which challenged the decision of the applicants to issue a survey certificate in 2012 in respect of the passenger ship "Calvos Queen". The ship was owned and operated by the respondent.  In that decision the applicants reduced the passenger number and weight capacity of the ship from its 2008 certificate at 102 passengers and 10 crew, total 122 persons;  down to 92 passengers and 10 crew, total 102 persons in the 2012 certificate. The trial judge found the applicants' decision to be arbitrary and unreasonable and therefore wrong. The Court set aside the certificate and ordered the issue of a new certificate on terms similar to the 2008 certificate.

3.	 The applicants failed to appeal the decision and filed this application. The applicants were late in filing the appeal because the written decision was not delivered by the Court until 16 February and the first applicant was overseas on duty travel in the time between February and March 2016. Both of these events soaked up time. The applicant being a party to the proceedings filed this application 35 days after the 40 days time limit for filing the appeal had expired.  

4.	The applicants' case for review is set out in the various matters contained in the application for review. It suffices to summarize from the proposed grounds of review. The central point in this review is the trial judge's findings of fact and conclusions reached on the evidence and other material produced by the parties. The applicants claim:

(1)	The trial judge erred in finding that the respondent has carried out weighing of person and luggage in the whole of 2008 and over a 2 year period after the issue of the 2008 certificate, because there was no direct evidence from an employee of the respondent who took those weights. The evidence of the Managing Director of the respondent Mr Sharp was not relevant because it related to weights taken in 2013 which was after the 2008 certificate's five year period expired. In any event, his evidence was hearsay and uncorroborated. 

(2)	The trial judge erred in finding that the applicants' decision was arbitrary and unsupported by evidence. The applicants were not required by law to base their discretionary decision on any evidence on the weight of passengers recorded in the operating period. They were entitled to rely on the Trim and Stability Booklet to base their decision to reduce the passenger number and weight capacity.  In the circumstances, the trial judge erred in finding that their decision was based on "fictitious assumptions as to body weight of passengers and not based on evidence of weighing.  

5.	The respondent’s main contention is that the applicant’s made a serious mistake in issuing a defective 2012 certificate. After repeated requests, they issued an amended certificate.  The amended certificate was also not done properly. It did not take into account the respondents’ passenger number and weight records supplied to them by the respondent.  Their decision was also not based on any evidence of weight records and the ship's inspection reports that they were supposed to keep. In the circumstances the trial judge made the correct findings and decision. 

Principles

6.          The criteria for the exercise of judicial discretion on grant of leave for judicial review under Constitution, s 155(2)(b) are those set out by the Supreme Court in Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011)SC1120 and expounded in subsequent cases including my own decisions in State v Toka Enterprises Ltd (2013) SC 1346, Luke Marano v Jack Nouari & The State (2013) SC1307 and Joseph Taleokon v Jeffrey Apakali & Fr.Paul Pakau (2013) SC1306. The applicant must have standing to bring the application, provide satisfactory explanation for the failure in filing an appeal, provide satisfactory explanation for any delay in bringing the application for leave for review, demonstrate exceptional circumstances showing manifestation of substantial injustice, and that it is in the interest of justice that the decision should be reviewed.  Granted the applicant has standing to bring the application, the last two factors always remain the most important of the factors to be considered.  In considering those two factors, the Court should direct its attention to any serious questions that may be raised regarding the correctness of the trial judge's findings and conclusions on evidence, facts and the law that manifests in substantial injustice that could warrant a full review.   

7.          In the case at hand, I deal with these two factors together.

The trial judge's findings of facts and conclusions

8.      Prior to the issue of the 2008 certificate, the ship was based in Australia. For purpose of the ship's registration and operation in PNG, a survey certificate was necessary. The PngNMSA was the authority responsible for issuing the certificate under the National Maritime and Safety Authority Act. There was no dispute at the trial that upon the issue of the survey certificate on 12 May 2008, the ship was registered to operate as a passenger ship in the PNG waters. The survey certificate contained conditions as to the ship's descriptions and number of passengers, as follows:   

Ship's description:

Name of Ship:  Calvos Queen
Port of Registry: Port Moresby
Registry No:  00140
Vessel Type: Passenger Ship
Tonnage: Gross - 94. Net- 40
Engine output:  BhP/KW - 2x480/716.16
Year Build:  1984

Passenger number: 

Number of Persons Maximum Allowed/LSA Capacity:  122
Crew Manning: 10
Number of passengers allowed: Berthed: None       Unberthed: 122
Is fit to ply on the following voyages or class of voyages: in Papua New Guinea Waters
Certificate No:  301140-08 is valid until 11 May 2012.

9.     The 2008 certificate fixed the maximum number of passengers, but not the body weight and carry-on luggage weight of each passenger. The weight conditions were determined under international standards set by the International Convention of the International Maritime Organization (IMO Regulations known as Code of Intact Stability 2008), which were published in a booklet titled "Trim and Stability Booklet". This booklet was produced in evidence at the trial. The booklet and its content were not in issue at the trial. 

10.      The IMO Code of Intact Stability set the following weight conditions:

Load conditions 2 & 3:  for a 92 passenger- @75kg/passenger with a 15 kg allowance
Load condition 4 & 5:   Total passenger weight 75kg/passenger inclusive of carry-on baggage.  Maximum passenger capacity is 112. 
 
11.      The trial judge found that the original 2008 certificate was issued on a factual assumption of passenger weight at average 60kg/passenger and carryon luggage at 15kg/passenger; total 75kg/passenger. These were consistent with the IMO Code of Intact Stability conditions. This finding is not challenged in this review.

12.      There was no dispute at the trial as to the validity of the 2008 certificate and its passenger number and weight conditions stipulated in the certificate. The dispute turned on the evidence on passenger numbers and weight recorded during the ship’s operations to base the decision on the issue of the 2012 certificate. 

Determination of main findings in issue

13.      I approach the determination of the application by dealing with the main points raised by the applicants. The applicants’ first point is that the trial judge erred in finding  that " the weighing figures for the Respondent (then Plaintiff) had been accepted as justifying the figures in the 2008 certificates " because the 2008 certificate was based on other materials and inspection of the ship. The ship "had not yet sailed in PNG waters prior to 2008 thus there can be no weighing figures to justify issuing of the 2008 certificate".

14.      The trial judge's findings appear in paragraph 7 (and related paragraphs 8,18,19, 20 and 21) of the written judgement. Paragraph 7 states:

"Captain Sharp, managing director of the plaintiff company, deposed that the employees of the plaintiff carried out weighing of passengers and luggage over a 2 year period to arrive at an average of 60.2kg per passenger and 15kg for luggage. The plaintiff has produced records purporting to verify those figures. That has been accepted as justifying the figures stated in the 2008 certificate."

15.      To my mind, the applicants have taken the trial judge's statement out of context. The trial judge was referring to the passenger number and weight taken in the 2 years of its operation since the grant of the original certificate to show consistency with the conditions fixed in the 2008 certificate. The trial judge did not say the conditions in the 2008 certificate were fixed based on evidence of weights recorded prior to its issue. This argument is without merit. 

16.     The applicants’ second point relates to the passenger weights recorded in the 5 year operating period of the certificate which were submitted by the respondent to support its application for the 2012 certificate. The applicant argues that the trial judge erred in relying on 2013 weight records produced by Mr Sharp which were not relevant for the 2012 certificate.  In his affidavit filed in these proceedings, Mr Sharp has reproduced the same weight records that he produced at the trial. The document bears the heading "Summary of Passenger Weights 2013". The trial judge accepted this evidence. The trial judge found that the respondent produced weight records of passengers for the 2 year period and that evidence was reliable.

17.      I accept the applicant’s argument on this point. The weight records were a relevant and material piece of evidence upon which the trial judge made determinative findings of fact and reached conclusions on material issues in the trial. There arise serious questions as to the relevance and inadmissibility of this piece of evidence.

18.      The applicants’ third point relates to the reliability of Mr Sharp’s evidence on the passenger number and weight recorded in the 2 years of the ship’s operation which the trial judge accepted as reliable.  It follows from my findings on the second point that there are serious questions regarding the reliability of Mr Sharp’s evidence.

19.      The applicants’ fourth point relates to the evidence produced by the applicants from their own sources to support their decision. Trial judge found that the applicants’ decision to fix reduced weight conditions was arbitrary and unsupported by evidence. He found the decision to be based on “fictitious assumptions as to body weight of passenger” and therefore “unreasonable and against the evidence presented to it”. 

20.      At the trial it appears to me that the applicants did not produce any evidence of passenger and weight records and the ship’s inspection records and reports in the operating period, even though they carried out inspections in 2009, 2010 and 2011. The applicants argue that the trial judge erred because there was no legal requirement for the applicants to base their decision on such evidence. The decision was discretionary and correctly based on the provisions of the Trim and Stability Booklet.  

21.       In my view, The Trim and Stability Booklet simply stipulated passenger number and weight conditions. The passenger number and weight records for the operating period that demonstrated compliance with the IMO Code of Intact Stability contained in the Trim and Stability Booklet was necessary to be considered in deciding on the grant of the 2012 certificate. In reaching its decision, the applicants were duty-bound to obtain evidence and inspection reports on the ship’s condition and its capacity to carry the number of passengers and their weight and to consider that evidence alongside the records of passenger number and weight supplied by the respondent in its application for the 2012 certificate. The applicants did not present that evidence to the Court except what the trial judge described as an assertion that the ship's structure had not been altered in the operating period. The full nature of the evidence given by the applicants on these relevant matters is not before me to make any meaningful assessment of where the judge went wrong in reaching the conclusion that he did. That assessment will no doubt occur at the hearing of the substantive application for review.    

22.      With regard to the main points raised by the respondent, my findings in response to the main points raised by the respondent are covered in my determination of the points raised by the applicants. 

23.      Further, the respondent heavily relies on a mistake made by the applicants in the first certificate issued in 2012 and corrected by an amended certificate to support the argument that the 2012 certificate was also defective. This point was raised before the trial judge. The trial judge noted that the defect was rectified by the amended certificate and this was not disputed by the applicants. It appears to me that defect was a minor one that did not affect the total passenger number appearing as assigned in the certificate. In the first 2012 certificate, the figure for the total number of "unberthed passengers" was miscalculated at 92 (with 102 persons and 10 crew).  The amended certificate showed the correct total unberthed passengers at 102 persons (with 10 crew and 92 unberthed passengers). The total number of crew (10) and the total number of passengers inclusive of crew (102) remained unchanged. The trial judge expressed concern at the outset that "it is inexplicable that a clearly erroneous certificate should be issued and stubbornly allowed to be amended for over two and nearly 3 years.. despite the error being pointed out and even acknowledged at an early stage". However these observations appear to be isolated to the main findings on the evidence. Those observations were nowhere recalled by the trial judge in the main body of his reasoning to support his main findings on the evidence and conclusions.  For this reason, I find that no serious questions emerge from this point.

Conclusions and Orders

24.      For the foregoing reasons, I am satisfied that exceptional circumstances have been shown by the applicant that the trial judge erred in making findings of fact and reached conclusions on material aspects of the evidence and that those findings and conclusions were determinative of the outcome of the case. There are serious questions arising from those findings and conclusions demonstrating substantial injustice. 
 
25.      I am satisfied that it is in the interest of justice that the decision of the National Court be reviewed by the appeal court.  

26.      With regard to the other factors to be considered, I am satisfied that the applicants have fulfilled those requirements. The applicants as parties in the proceedings in the Court below have standing to bring the application, that they have offered a satisfactory explanation as to why they failed to file the appeal and that there has been no delay in making this application.  

27.     I issue the following orders:

(1)	The application for leave for review is granted.
(2)	The applicants shall file and serve the substantive application for review within 21 days. 
(3)	The costs of this application shall be in the cause of the substantive application.

________________________________________________________________
T L Cooper Lawyers:  Lawyer for the Applicants          
Solwai Lawyers: Lawyer for the first Respondent