SC2485

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 48 OF 2021

BETWEEN:
DADS INVESTMENT CORPORATION LIMITED
formerly known as ERIC TRADING PTY LTD
Appellant

AND:
BENJAMIN SAMSON AS REGISTRAR OF TITLES
First Respondent

AND:
JUSTINE TKATCHENKO AS MINISTER FOR LANDS AND PHYSICAL PLANNING
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

AND:
JAMIE MAXSTONE GRAHAM
Fourth Respondent

Waigani:  Kandakasi DCJ, Murray & Kangwia JJ
2022:  25th August
2023: 25th October

APPEALS – Appeal against interlocutory judgement refusing an application for leave to further amend Order 16, r. 3 (2) (a) statements – Exercise of discretion- Whether Primary Judge erroneously exercised his discretion – Application seeking to introduce new material after grant of leave for review – Appellant required to demonstrate error in the exercise of discretion by Primary Judge - No identifiable error demonstrated- Appeal dismissed.  

JUDICIAL REVIEW – Special process - Exclusively provided for by Order 16 of the National Court Rules – Issues arising in judicial review proceedings must be dealt with under Order 16 and not other provisions of the National Court Rules

PRACTICE & PROCEDURE – Judicial review application – Application for amendment of Order 16, r.3 (2) (a) statement – Applicant for leave to amend – Applicable criteria – Conventional criteria for amendments of pleadings appropriate modifications applicable – Application prior to grant of leave can be readily granted  - Applications after grant of leave should not be readily granted unless application concerns and is confined to matters pleaded and formed the basis for grant of leave for judicial review – Venturing outside of that could amount to an abuse of process.

PRACTICE & PROCEDURE – Appeal – Appellant sought to rely on conventional criteria for amendments arguing primary Judge failed to apply the criteria – Whether primary Judge was required to apply all the principles in the conventional criteria - No authority requiring all the principles in the conventional criteria to be satisfied to secure an amendment - Whether issues not raised in the Court below can be raised on appeal - Settled law that unless parties has raised an issue in the Court below, they are precluded from raising it on appeal.   

Cases Cited:  
Peter Makeng v. Timbers (PNG) Limited & Ors (2008) N3117.
Alex Timothy v. Hon Francis Marus (2014) SC1403.
Mek Kuk v. Peter O’Neill (2014) SC1331.
Peter O’Neill v. Nerrie Eliakim (2016) SC1539.
Church of Jesus Christ of Latter-Day Saints Inc v. Kimas & Ors (2022) SC2280.
Barrick (Niugini) LTD v. Nekitel (2020) SC2007.
Papua Club Inc v. Nusaum Holdings Ltd (2002) N2273.
Steven Mabata Viri v. Fu TSAI WU (2017) N7006.
Nobetau v. Bougainville Executive Council (2020) N2020.
The Government of Papua New Guinea v. Barker [1977] PNGLR 386.
Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd [1995] SC488.
Fly River Provincial Government v. Pioneer Health Services Ltd (3003) SC705.
Kekedo v. Burns Philp [1988-89] PNGLR 122.
Bokele v. Police Commissioner (2001) N2105.
Review Pursuant to Constitution Section 155(2)(b); Application by Lawrence Bokele (2002) SC682.
Pere v. Ningi (2003) SC711.
H.R. Holdings Ltd v. Taka (2023) SC2411.

Counsel: 
A. Asigau & L. David, for the Appellant
No Appearance for the First, Second & Third Respondents
M. Muga, for the Fourth Respondent

25th October 2023

1.	BY THE COURT:  The Appellant is appealing against the entire decision of the National Court which refused an application for leave to further amend its statement filed pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules (Order 16 (3) (Order 16 Statement).  The application to amend was made after grant of leave for judicial review.  On 31 August 2021, the appellant was granted leave to appeal. We heard and reserved on the substantive appeal. 

Background

2.	On 24th March 1993, the appellant became the registered proprietor of a piece of land described as Allotment 9, Section 33, Granville: Port Moresby, NCD contained in State lease Volume: 1 Folio: 206 (the property). Then, sometime in November of 2010, the title to the property was fraudulently transferred to another person, namely, Yu Qing Liang. The Appellant took the matter to Court, through OS 866 of 2010 and the Court restored him as the owner. Despite those orders, the records kept by the first 3 Respondents were not rectified. 
3.	On 26 October 2017, after becoming aware that, the 4th Respondent was issued a title to the property, the Appellant took the matter back to the National Court, by OS 837 of 2017. That proceeding was however, discontinued on 19 March 2018, after the Appellant became aware that, the first 3 Respondents had on 5 October 2011 forfeited its lease and on 5 May 2017, they granted a new lease over the property to the 4th Respondent. 
4.	Aggrieved by the forfeiture and the grant of lease to the 4th Respondent, the Appellant on 21st June 2018, commenced judicial review proceedings against the first 3 Respondents’ decisions to forfeit and grant the new lease over the property. On 20 September 2018, the Appellant was granted leave to amend its Order 16 Statement (first amendment). Leave for Judicial Review was also granted on the same date.
5.	About 2 weeks later, on 3rd October 2018, the Appellant filed a Further Amended Order 16 Statement (second amendment). It is not clear as to how the second amendment came about as there is no evidence of any application and or order leading to that.  
6.	On 31 March 2021, the Appellant filed a notice of motion seeking leave to further amend its Order 16 Statement, purporting to clarify the grounds for the review already set out and to include further grounds for review. The application was refused. The decision refusing that application is the subject of this appeal.
Relevant Law
 7.	The law on process and procedure for judicial review proceedings is now clearly established law.  Judicial review is a special process. As such, it is exclusively provided for by Order 16 of the National Court Rules 1989.  Hence, any application for judicial review and any issue as to its competence, summary dismissal and any other issue needs to be taken in accordance with the process and procedure provided for thereunder. This means the other provisions in the National Court Rules do not apply to judicial review proceedings.  
8.	The decision in Peter Makeng v. Timbers (PNG) Limited & Ors (2008) N3117, per Injia DCJ (as he then was) clarified the correct position at law.  Relevantly, the then learned Deputy Chief Justice said:
“16.	Judicial review is a special procedure developed by the Courts to deal with complaints by persons aggrieved by decisions made by public administrative bodies and persons exercising public power conferred by statute. It is discretionary. Ordinarily, it is not the Court’s function to intervene in the administrative functioning of statutory authorities except in cases where the statutory authority has committed a legal error. Judicial review is restrictive, and this is achieved in several ways:
1.	by prescribing comprehensive and exhaustive rules of practice and procedure, which inter alia, confers jurisdiction to review administrative acts in strict and mandatory terms;
2.	by restricting the grounds in which judicial review procedure is available: see Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122; 
3.	by prescribing special types of relief in the nature of prerogative orders which are available in judicial review; 
4.	 exercising the discretion under the rules is restrictive.”
9.	This statement of the law has been endorsed by the Supreme Court.  One such decision is the decision in Alex Timothy v. Hon Francis Marus (2014) SC1403, per Injia CJ, Davani & Gabi JJ.  In so doing the Court said:
“18. These peculiarities and processes, common only to Judicial Review proceedings, were discussed at length in Peter Makeng v. Timbers (PNG) Limited and others (2008) N3117.

19.	In the event, an interlocutory application to dismiss the Order 16 Originating Summons is filed and made before leave for review is granted, then such an application is permissible but must be brought within the provisions allowing such applications, found only in Order 16 and not elsewhere in the National Court Rules. Likewise, an application to dismiss a substantive application for judicial review must be brought within the provisions allowing such applications, found in Order 16 and not elsewhere in the National Court Rules.
20.	This Court and the National Court have over the years, as is reflected in the decisions referred to above, emphasised the special and peculiar role played by the Judicial Review procedure.  This process is exclusive which is why Order 16 guides the way Judicial Review proceedings are conducted.”

10.	By the decision in Alex Timothy v. Hon Francis Marus (supra) this Court also took the opportunity to correct departures from this well settled legal position as represented by the decision of this Court in Mek Kuk v. Peter O’Neill (2014) SC1331, per Batari, Davani (as she then was) and Manuhu JJ which held that other provisions of the National Court Rules apply to judicial review proceedings.  The Court in Alex Timothy v. Hon Francis Marus (supra), restated the law in these terms:
“21.	The previous view by the Courts in this jurisdiction that because proceedings were commenced by way of Originating Summons, that Order 4 Rule 36 applies, is clearly a misapprehension because as emphasised in the cases referred to above, an Originating Summons in a Judicial Review proceeding is not the same as an ordinary Originating Summons.

22.	Additionally, Order 16 does contain its own provisions for summary disposal of an application for leave for review or the substantive application for judicial review for reasons of want of prosecution, want of competence or for any other reason.  The Court may summarily dispose of a proceeding on application by a party, of the Court’s own motion or on referral by the Registrar: Order 16 Rule 13 (2). The application must be made by Notice of Motion: Order 16 Rule 13 (1). Clearly, there is no room for a party to invoke Order 4 Rule 36 or any other similar provision found elsewhere in the National Court Rules.”

11.	Later, in Peter O’Neill v. Nerrie Eliakim (2016) SC1539, per Kandakasi J (as he then was), Hartshorn & Kassman JJ, which was a decision that came after the decision in Alex Timothy v. Francis Marus (supra) reaffirmed the settled legal position in these terms:
“17.Order 16 Rule 8(2) defines “interlocutory application” and in our view restricts it to what is described in the heading to Rule 8. Given this we respectfully disagree with the Supreme Court in Kuk v. O’Neill (supra) if the effect of its decision was that any interlocutory application pursuant to any Rule in the National Court Rules in addition to those referred to in Order 16 Rule 8(2) can be made in a judicial review proceeding.

18.	Given this we prefer the reasoning and conclusion in Timothy v. Marus (supra) and are of the view that Order 16 National Court Rules provides a complete and exclusive procedure for interlocutory applications involving judicial review proceedings. Consequently, in the National Court in a judicial review proceeding, if a notice of motion that contains an application for interlocutory relief that is not brought pursuant to a Rule in Order 16 is accepted, a fundamental error is committed. This is because such a notice of motion has not engaged the jurisdiction of the Court to permit it to adjudicate upon an interlocutory application in a judicial review proceeding.”

12.	More recently, this Court in its decision in Church of Jesus Christ of Latter-Day Saints Inc v. Kimas & Ors (2022) SC2280, per Kandakasi DCJ, cited this Court’s above decisions and concluded:
“This settled position of the law is consistent with the law generally that, where specific provisions are made for any process or procedure, the specific provision applies to the exclusion of any provision of general application: See for example the decision in William Powi v. Southern Highlands Provincial Government (2006) SC844, per Jalina, Gavara-Nanu and Kandakasi JJ (as I then was).”

13.	Applying the law to the present case, this means, an application for judicial review is subject to compliance of the requirements under Order 16 of the National Court Rules. Pursuant to O. 16 r. 3 (4) and r. 6 (2), the Court has discretion to allow amendments to an O.16 statement that is filed in support of such an application.  Relevantly the sub-rules are in the following terms: Rule 3 (4)
“Without prejudice to its powers under Order 8 Division 4, the Court hearing an application for leave may allow the applicant’s statement to be amended, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit.”
Rule 6 (2)
“The Court may on the hearing of the summons allow the applicant to amend this statement, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.”
(Emphasis supplied)
14.	As may be gleaned from these provisions, the power to grant leave for amendments at the leave stage is vested in the Court hearing an application for leave for judicial review by O.16, r.3 (4).  After grant of leave and at the hearing of the substantive review, power is vested in the Court hearing the substantive review application for leave to amend a statement under O.16, r. 3 (2) (a).  It should follow therefore that, a plaintiff in a judicial review proceeding has the right under the relevant provisions to apply for leave to amend his or her O.16 statement. However, it should be noted that all such amendments are restricted to and for the purpose of “specifying different or additional grounds for relief or otherwise”.  Unfortunately, there is no prescription anywhere in O.16 as to when and how the application should be made and most importantly, the relevant criteria of any such amendments.  
15.	Given that lacking, we note this Court in its decision in Barrick (Niugini) Ltd v. Nekitel (2020) SC2007, held the conventional criteria for amendment of pleadings in other National Court proceedings, as stated in Papua Club Inc v. Nusaum Holdings Ltd (2002) N2273, is applicable and upheld an appeal against a refusal of leave to amend the appellant’s O.16. r.3 (2) (a) statement.    Accordingly, we are of the view that an applicant for leave to amend an O.16 statement must meet the conventional criteria for amendment but restricted to “specifying different or additional grounds for relief or otherwise” to achieve any of the objectives under the conventional criteria for amendments but within the context of the fact that it is a judicial review proceeding.   We will pick up on this later and elaborate when dealing with the relevant grounds of the appeal.

Appeal grounds 

16.	With the above in mind, we turn to the grounds of appeal before us.  The appellant pleads 10 grounds.   A close look at them has led us to put them into 5 main grounds. They are:

(a) 	Ground 3 (a): Failure to apply the conventional criteria.
(b)	Grounds 3 (b), (c), (e) & (f): failure to accept the proposed amendments.
(c)	Ground 3 (d): No objection by the first, second & third Respondents to the Appellant’s application for leave to amend.
(d)	Grounds (3) (g), (h) & (i): prejudice suffered by the 4th respondent.
(e)	Ground 3 (j): wrong exercise of discretion 	

Submissions

(a)	Failure to apply with conventional criteria (Ground 3 (a))

17.	Under this ground Mr Asigau attacks the exercise of discretion by the Primary Judge and submits that he failed to apply the conventional criteria. He cites the case of Barrick (Niugini) Ltd v Nekitel (2020) SC 2007 as supporting this argument. 

18.	It is asserted that the Primary Judge exercised his discretion erroneously when he referred to only two considerations under the conventional criteria.  In particular, he argues that the Primary Judge also failed to consider that the amendments that were sought were in respect of the already pleaded grounds to better plead them with better particulars and clarity and did not introduce new facts.  

19.	Mr Muga opposes and contends that the Primary Judge did not err in the exercise of his discretion. In so doing, he submits that the trial judge relied on the case of Steven Mabata Viri v. Fu TSAI WU (2017) N7006 as constituted of the 3 guiding criteria and correctly dismissed the application. He also contends that the Primary Judge also considered that the 3-years delay since leave was granted would be prejudicial to the 4th Respondent. Finally, he contends that the Appellant cannot now refer to a case not referred to in his submissions in the original application.

(b)	Failure to accept proposed amendments (Grounds 3 (b), (c), (e) & (f))

20.	Firstly, with respect to ground 3 (b), Mr Asigau submits that the proposed amendments did not introduce new facts. The amendments sought were to clarify the grounds to properly identify the issues to be tried. Given that, he submits leave should have been granted as in the case of Nobetau v. Bougainville Executive Council (2020) N2020. 

21.	He admits the only new relief sought was a claim for damages as an alternative which is permissible.  

22.	The other proposed amendments were to include a further order for mandamus for the first 3 Respondents to comply with the National Court Orders made on 10 February 2012. Counsel further argues that, the pleading on the failure to comply with a Court Order to register the Appellant as the title holder by the Registrar was a minor amendment which would cause no prejudice or injustice to the 4th Respondent because no new facts were introduced.

23.	The 4th Respondent’s response is that the Appellant did not seek any order for mandamus in the application for leave.  Leave was therefore granted for the decision to forfeit and grant of title only. It was not for a failure to comply with a Court Order. Additionally, the Appellant argues, if appeal is upheld and the amendments are allowed, that will seriously prejudice the 4th Respondent.  Therefore, this ground should be dismissed. 

24.	Secondly, with respect to ground 3 (c), the Appellant adopts the submission under grounds 1 (b) and submits that Judicial Review is founded on recognised grounds like failure to comply with previous orders of the National Court, breach of natural justice, failing to comply with mandatory requirements of legislation, Failure to accord the right to be heard, ultra vires exercise of power, unreasonableness, and breach of Constitution s 41. But the Trial Judge misapprehended the purpose of the amendment and in so doing exercised his discretion contrary to law. 

25.	The 4th Respondent while adopting the submissions under grounds 1 (b) further submits that a grant of leave to operate as a stay of the decisions pending the hearing is mischievous. The pleading did not specify which decision is proposed to be stayed, and how the amendment would clarify the grounds after having been refused in an earlier application for stay, hence this ground should be dismissed.

26.	Thirdly, with respect to ground 3 (e), the Appellant submits that the trial judge erroneously determined the proposed amendments as matters external to the decision-making process when the facts referred to are facts already pleaded in the Appellants original statement and amended statement which gave context to the judicial review application. 

27.	The 4th Respondent argues that the trial judge correctly held the proposed amendments as matters external to the decision-making process as the proposed amendments refers to decisions that were not the subject of the leave granted for judicial review and this ground should be dismissed.

28.	Finally, with respect to ground 3 (f), the Appellant submits that the trial judge’s observations were misconceived as to the relevance of the facts pleaded in the original O. 16 Statement and the nexus of the facts to the proposed further amendments to the relief and the grounds for the reliefs sought.  

23.	The 4th Respondent relies on its submissions under grounds 1 (b) & (e) for this ground.

(c)	No objection by the first, second & third Respondents to the Appellant’s application for leave to amend (Ground 3 (d))

29.	Under this ground the Appellant submits that when the first 3 Respondents against whom the judicial review proceeding is founded did not object to the proposed amendments, the Trial Judge failed to give adequate weight to that and as a result fell into error in the exercise of his discretion. 

30.	The 4th Respondent argues that this ground is not relevant and should be dismissed.

(d)	Prejudice suffered by the 4th respondent (Grounds 3 (g), (h) & (i))

31.	With respect to these three grounds, the Appellant submits that the trial judge mistakenly found the 4th Respondent to be prejudiced when there were no material establishing prejudice to the 4th Respondent by the proposed amendments when the 4th Respondents contentions related to delay and not the proposed amendment.  The delay can be adequately compensated with costs. 

32.	It is also submitted that when determining prejudice, the trial judge erroneously and prematurely determined the 4th Respondent as the owner of the property when the issue for substantive determination was ownership. 

33.	The contention of the 4th Respondent is that the trial judge did not err when he considered prejudice caused to him by the 3 years delay in making the application after leave was granted.  These grounds should therefore be dismissed.

(e)	Wrong exercise of discretion (Ground 3 (j))

34.	Under this ground the Appellant submits that, even though the reasoning of the trial judge is somewhat difficult to follow, it is nonetheless unreasonable and unjust, and the Court should infer that there was a failure to properly exercise his discretion and grant the orders sought.

Consideration

35.	It is common ground that the decision by the primary Judge to refuse leave to further amend the O.16 Statement was an exercise of discretion by the primary judge. The relevant principles on appeals against exercise of a trial judge’s discretion are well settled. As explained in cases such as The Government of Papua New Guinea v. Barker [1977] PNGLR 386 and Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd [1995] SC488, appellate Courts should approach appeals against exercise of discretion with caution.  Hence, as explained in Barker, to allow for an interference with a primary judge’s exercise of discretion an appellant must show the trial judge:

“… exercised his discretion upon a wrong principle, has allowed extraneous or irrelevant matters to guide or affect him, mistaken the facts, or not taken into account some matter for consideration. Then and then only then… the lower court having been shown to be clearly wrong in its decision, or it appearing that otherwise injustice will be done, the appellant court may exercise its own discretion in its own discretion in substitution for that of the lower court, if it has the material for doing so.”

36.	Accordingly, it is for the appellant to demonstrate to this court that the learned Trial Judge erred in the exercise of his discretion. Bearing this principle in mind, we now turn to the grounds of appeal before this Court.

Ground 3 (a): Failure to apply conventional criteria.

37.	We deal firstly with the issue of the Primary Judge failing to apply the conventional criteria raised in ground 3 (a) of the appeal.

38.	As observed earlier in this judgment, the principles that govern amendments to pleadings in ordinary civil proceedings described as the conventional criteria by the decision in Barrick (Niugini) Ltd v. Nekitel (supra) applies.  Relevantly, these principles include amongst others:

“(a)	whether the amendment will enable the Court to determine the real questions in controversy between the parties or correct any defect or error in the proceedings,
(b)	whether the proposed amendments will not result in injustice and prejudice to the other party,
(c)	whether the application is not made mala fide and that the other party will be compensated with costs for such amendments. (See Papua Yaught Club v Nusaum Holdings Ltd (2002) N2273: Michael Kewa v Elias Mai Kombo (2004) N2688).” 

39.	There is no authority which states that all the principles in the conventional criteria are to be satisfied to secure an amendment.  This is understandable.  Not all criteria or questions may be relevant in every case.  An application might turn on only one or two of the criteria.   The duty is on an applicant to choose the basis on which an amendment is sought.   Once that choice is made, the basis or grounds so chosen must be established to the satisfaction of the court hearing the application.   

40.	Given the settled law that, judicial review proceedings are exclusive and completely governed by Order 16, a court hearing an application for leave to amend needs to remind itself of that fact.   Having done so, the court also needs to consider at what stage of the proceeding an application to amend is being made.  An application for leave to amend prior to grant of leave should readily be granted if the purpose of the amendment per the conventional criteria are met.  The same cannot be the case after grant of leave for judicial review.  The plaintiff in such a case is pursuing his proceedings based on the leave granted.   It should follow therefore that, any application for leave to amend after grant of leave for judicial review must be confined to the matters that were pleaded and that which formed the basis for the grant of leave.  Venturing outside the confines of that, would be doing so without leave and therefore be highly irregular and unauthorised.  For a decision to grant leave to proceed with a judicial review application is not a decision authorising a plaintiff to introduce any additional facts and grounds as he pleases but to proceed to a hearing on his or her substantive review application based on what was placed before the court, which the court had considered and decided to grant leave.  

41.	We note with respect that, when the Court in Barrick (Niugini) Ltd v Nekitel (supra), decided to adopt the conventional criteria in its decision, the Court did not give any consideration to the special nature of judicial review proceedings and the matters we highlighted above.  Whilst we agree that the conventional criteria for amendments to pleadings and proceedings applies to judicial review proceedings, but the criteria should be appropriately modified, considered, and applied within the context of judicial review proceedings with its peculiarities. 

42.	The Appellant in this case did not rely on Barrick (Niugini) Ltd v Nekitel (supra) when applying for leave before the trial judge. Instead, the case of Steven Mabata Viri v Fu TSAI WU (supra) was referred to by counsel for the Appellant, as constituting the 3 guiding criteria which the trial judge applied and dismissed the application.  Therefore, the Appellant cannot now refer to a case not referred to in his submissions in the original application and argue that the trial judge failed to consider and apply. We reiterated, it is settled law that, unless a party has raised an issue in the Court below, he is not at liberty to raise it on appeal: See Fly River Provincial Government v Pioneer Health Services Ltd (3003) SC705.  We thus dismiss this ground of appeal as having no meri and is baseless. 

Grounds 3 (b), (c), (e) & (f): Failure to accept proposed amendments

43.	Upon a perusal of the amended statements and the proposed further amendments there are variances with further additions to the statement of facts, the relieves sought, and the grounds. They are summarised as follows:

a.	Further additions to statement of facts.
i)	References were made to two letters between the Appellant and the State regarding s.5 notice under the Claims By and Against the State Act regard the property the subject of the proceedings.
ii)	Claim of K385,885 as expenses incurred on land the subject of the proceeding. 
iii)	The Plaintiffs inability to develop the land owing to an illegal transfer of title and Defendants failure to comply with Court Orders naming the Plaintiff as the registered proprietor.
iv)	As of 3 March 2020, the land was valued at K2, 600, 000. 00

b.	Further additions to relief sought.
i)	An order in mandamus against 1st,2nd & 3rd Defendants to give effect to orders of the National Court made on 10 February 2012.
ii)	Grant of leave operates as a stay of the decisions of the 1st,2nd & 3rd Defendants pending hearing and determination of the proceedings.
iii)	Damages

c.	Further additions to the grounds
i)	Noncompliance with orders of National Court
ii)	Breach of Natural Justice by failing to comply with mandatory provisions under s 122 (2) (a), (3) & (4) of the Land Act. 
iii)	Decision ultra vires in failure to comply with the s 122 land Act requirements.   
iv)	Wednesbury principle of unreasonableness in failing to comply with the S 122 Land Act requirements. 
v)	Decision being harsh and oppressive, and not justifiable. 
vi)	Breach of s 41 of the Constitution.

44.	These proposed amendments in our respectful view amounts to substantial additions to the facts, relieves sought and grounds relied upon. Most of these proposed amendments are not pleaded in the original application for leave or in the first or second amended statement which necessarily formed the basis on which leave was granted.  They are sought to be included for the first time outside that which formed the basis for the grant of leave for judicial review.

45.	One such glaring example is allegations of failure by the 1st, 2nd, and 3rd  Respondents to comply with the Court Orders of 10 October 2012 which ordered them to update their records and restore the Appellant as the proprietor.

46.	Documentary evidence show that the Appellant did follow ups on the Court Orders through 3 letters dated 10 February 2012, 21 February 2012, and 31 February 2012. Since then, no further action was taken to enforce the Court order.  Five years later, on 5 September 2017 the Appellant became aware of the 4th Respondents ownership of the property.

47.	The issue of non-compliance of the Court Order was not pleaded in the original and amended Order 16 Statement. The decisions sought to be reviewed related only to the forfeiture of the State Lease to the property and its’ grant to the 4th Respondent.  The Appellant had the right, duty, and obligation to take all steps necessary to enforce the judgment and or orders it obtained on 10 October 2012, which was long before the decision sought to be reviewed.  It did only two letters which did not result in the desired outcome.  When that turned out to be the case, the Appellant should have taken enforcement proceedings promptly until the object of the Court orders were achieved.  That the Appellant failed to do for reasons not disclosed and only known to it.

48.	The Court Orders of 10 October 2012 pre-existed the Appellant’s application for leave for judicial review.  Again, for reasons not disclosed and only known to the Appellant, it did not include all facts, the reliefs sought and their grounds in the original application for leave for judicial review and the first of the amendments to its Order 16 Statement.  Only after grant of leave to proceed to judicial review and grant of leave to amend its Order 16 Statement the first time, the Appellant belatedly sought to include in its second application for leave to amend what it had failed to include in the original leave application or the subsequently amended application. We are of the view that the second application for leave to amend was mala fide and aimed at seeking enforcement of the 10 October 2012 Court Orders well after events have overtaken the usefulness of those orders. By his sluggish conduct the Appellant is prevented from adding non-compliance of the Court Order issue as a further amendment to the Order 16 statement. We thus find that the learned trial judge was correct in not granting the Appellants second application for amendment.	

49.	The other additions to the grounds relate to the first 3 Respondents decisions as to which the Appellant claims were tainted by, breach of natural justice, acting ultra vires, contrary to the Wednesbury principle, decision being harsh and oppressive, and breach of s 41 Constitution. These are recognised grounds in a judicial review as was stated in the case of Kekedo v Burns Philp [1988-89] PNGLR 122, however they were not part of the pleadings when leave for judicial review was heard and granted.  They existed from the beginning to be included in the original leave application and failing that, the Appellant’s first successful application to amend and amendments effected thereafter. No explanation was given as to why these grounds were not included from the beginning or in the first lot of amendments. 

50.	We repeat what we have said above.  Proceeding on that basis, we are of the view that if the additions are allowed, they will introduce new facts to establish them. It will also involve fresh pleadings bordering on abuse of process and should not be permitted. The assertion that the further amendments were only to clarify the grounds is farfetched and a smokescreen for laxity and lack of due diligence. 

51.	The grounds relating to breach of statutory requirements in the forfeiture and grant to the 4th Respondent are relevant matters for review. However, the Appellant has brought the issue of breaches some 3 years after grant of leave for judicial review. From the records the Appellant missed three opportunities to amend the statements and include the issue of breaches. Those grounds were not featured in the amendments when the opportunity was there. It will serve no useful purpose to allow the breach of statutory requirements to be added to the issues for substantive hearing after events have overtaken the necessity for determination of alleged breaches. Most importantly, substantial prejudice will be caused to the 4th Respondent for no fault of his. As alluded to earlier, events have overtaken the relevance of the breaches by the Appellant’s dilatory conduct. It has sat on its right to pursue an enforcement of the Court Order issued in its favour.  In these circumstances, we find grounds 3 (c), (e) & (f) of the appeal are without merit and dismiss them.

Ground 3 (d): No objection by the first to third Respondents to the Appellant’s application for leave to amend.

52.	Turning to ground 3 (d), on the issue of lack of objection to the proposed amendments by the first 3 Respondents, we find this is not a valid basis to allow the amendments. The failure to object did not necessarily mean that it is or was a concession to the orders sought in the substantive review. It is settled law that judicial review is a matter entirely in the discretion of the Court.  It is not a matter of parties consenting. The court needs to be persuaded.  The decision of Kandakasi J (as he then was) in Bokele v. Police Commissioner (2001) N2105 is on point.  There, the parties consented to leave for judicial review being granted.  His Honour looked at some prior authorities and expressed the view that:

“From the above authorities, it is very clear that, the Court has the ultimate control over applications for judicial review. That is why leave is required. The Court can grant leave for judicial only if it is satisfied that all the pre-requisites and or the requirements for leave to be granted are met in a case before it. It follows therefore that, if the opposite is the case, then the application should be refused. Accordingly, in my view, leave cannot and should not be granted readily because there is no object or there is consent by the defendants as in this case. Instead, the court has the right and power to consider the application fully. If the materials disclose a prima facie or arguable case for judicial review, only then should the court grant leave. Indeed, I note that, all applications for leave for judicial review are made ex parte by operation of the rules of the Court and the long-and well-established relevant practice. As a result of that, usually the defendants do not participate at the hearing of an application for leave. That does not result in a grant of leave as a matter of course. Only if a case for leave to be granted is made out in such an ex parte process, leaves are granted. Given these, I am of the view that, even if parties consent to a grant of leave for judicial review, the court still has the ultimate say as to whether or not leave should be granted in the exercise of its discretionary power to only allow meritorious cases to proceed to judicial review. The question of whether or not leave should be granted, is determinable on the basis of the material produced and placed before the court.”

53.	On appeal to the Supreme Court, the Supreme Court dismissed the appeal in its decision reported as Review Pursuant to Constitution Section 155(2)(b); Application by Lawrence Bokele (2002) SC682.  In so doing, the Court reasoned:
“We conclude that the trial judge accurately stated the law in the passage quoted above and we would adopt his reasons. The case of Ila Geno and Others v The State (supra) does not assist the applicant’s contention. The facts of that case may be distinguished from the present case. The main ground for leave for judicial review in the Ila Geno case was lack of consultation of the Public Services Commission under s 193 (3) of the Constitution. This ground was clearly conceded by the State. In the present case, there was no concession by the respondents in relation to any of the grounds for judicial review. It was a mere consent to grant leave. The trial judge quite rightly pointed out at the hearing that the court ultimately has the control as to whether the case is appropriate for judicial review. Mr Ame then, having heard Kandakasi J’s stand on the issue of consent, did not proceed to argue the question of leave as he should have. He chose not to. He cannot now say, as in ground (2) that the Court denied him a right to a fair hearing and that the court did not exercise its discretion to allow the matter to proceed to review. It did. We consider that this ground has no merit, and we would dismiss it.”

54.	In its later decision in Pere v Ningi (2003) SC711 the Supreme Court adopted and applied the principle enunciated in Bokele v. Police Commissioner (supra). 

55.	We agree.  Adopting and applying the relevant principle to the present case, the Appellant had the obligation to make out a case for the Court to grant it further leave to amend in the terms sought.   That it failed to do.  Ground 3 (d) is thus without merit. Accordingly, this ground is also dismissed. 

Grounds (3) (g), (h) & (i): Prejudice suffered by the 4th Respondent

56.	We now turn to ground 3 (g), (h) and (i) of the appeal.  These grounds concerns the issue of prejudice.  We have already expressed the view that, if any party stood to be prejudiced by the amendments sought was the 4th Respondent.   Hence, in our view, the Trial Judge did not err in his determination that the 4th Respondent stood to be prejudiced. The trial judge was guided by the Appellants urging to rely on the Mabata Viri case which identified prejudice as a consideration when amendments were sought. 

57.	We repeat, if the amendment relating to the failure by the 1st, 2nd & 3rd Respondents to comply with a Court Order was allowed, the prejudice the 4th Respondent was likely to suffer is the loss of the property in circumstances where the decisions to forfeit and grant of the land to the 4th Respondent were made despite a Court Order without the 4th Respondent’s involvement in any way and is thus an innocent third party   This arguers well with the settled principle  in law that a third party who acquires title, free of any information of any fraud by the earlier title holder and against whom fraud is not brought home to him or her, title vested in such a party cannot be upset. See H.R. Holdings Ltd v. Taka (2023) SC2411 at [30] – [50].

58.	Whether the amendments are allowed or refused, the first 3 Respondents do not stand to be prejudiced in any way. The Appellant may have a recourse against those respondents for acting in breach of the orders of 10 October 2012 or for fraudulent transfer of the property.  Whether the Appellant will succeed in such a claim is separate matter for another day.  For these reasons, we find grounds 3 (g), (h) & (i) have no merit.   Accordingly, these grounds are also dismissed.

Ground 3 (j): wrong exercise of discretion

59.	We agree with the 4th Respondent that this ground is not a proper ground of appeal, but rather a mere submission. This ground too is therefore dismissed.

Conclusion

60.	As we have dismissed all the grounds of appeal, it follows that, the appellant has not demonstrated that the Primary Judge had erred in the exercise of his discretionary power in refusing the application for leave to amend.  The appeal in its entirety is therefore dismissed as having no merit.  Costs will need to follow the event.

Formal Orders.

61.	Based on the forgoing, we make the following orders:

1.	The Appeal against refusal of application for leave to further amend the Appellant’s statement pursuant to Order 16 (2) (a) of the National Court Rules is dismissed in its entirety.

2.	The decision the National Court in OS (JR) 405 of 2018 by his Honour Miviri J made on 18 May 2021 is affirmed.

3.	The substantive judicial review application in OS (JR) 405 of 2018 shall proceed to hearing before the same Judge or any other Judge in the Judicial Review Track.

4.	The Appellant shall bear the costs of the 4th Respondent to be taxed, if not agreed.
_____________________________________________________________
Pacific Legal Group: Lawyers for the Appellant	
Solicitor General: Lawyers for the First, Second, & Third Respondents
Simpsons Lawyers:  Lawyers for the Fourth Respondent