Amadio Pty Ltd v The State, Lowa, Moke, and Mt Kare Holdings Pty Ltd [1992] PNGLR 218 (5 June 1992)

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[1992] PNGLR 218 - Amadio Pty Ltd v The State, Patterson Lowa, Isaac Moke, and Mt Kare Holdings Pty Ltd

JUDICIAL REVIEW - Leave - Ex parte - Leave to appear - Constitutional principles require a fair hearing - general principles.

This was an application for leave to review the decision of the Minister for Minerals and Energy to extend the Prospecting Authority of Mt Kare Holdings Pty Ltd. for a further 2 years.

The plaintiff, which was a company of customary land owners, alleged that it had lodged a prior application for a PA which was not given adequate consideration.

R v Electricity Commissioners ex parte London Electricity Joint Committee Company (1920) Ltd [1924] 1 KB 171.

WOODS J: This is an application under Order 16 of the National Court Rules for leave to apply for judicial review to quash the extension of the term of Prospecting Authority 591, which extension was granted by the State to the fourth defendant in September 1991.

There are various expressions of how judicial review may arise, but one leading quotation is that of Lord Justice Atkin in R v Electricity Commissioners ex parte London Electricity Joint Committee Company (1920) Ltd [1924] 1 KB 171 at 205:

"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division."

In the case Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 All ER 935, the Court has confirmed the principle that prerogative orders, and in our jurisdiction the judicial review procedure in Order 16, will issue to any body which exercises authority given to it by statute.

In the case before me now, the Minister for Minerals and Energy has the power by statute to grant prospecting authorities and has done so, and the plaintiff is coming to this court as a party aggrieved or affected seeking a review of this grant.

The plaintiff submits to this court that it had applied for the prospecting authority over the land the subject of the grant and, further, that it is a company owned by persons who claim to have an interest according to custom in the land. On these claims, I am satisfied that it may be a person who would be entitled to seek review.

At the hearing of this application for leave lawyers representing the defendants sought leave to appear and respond to the application. Their applications were objected to by the lawyer for the plaintiff, who emphasised the wording of Order 16 that an application for leave for judicial review is made by originating summons ex parte to the court.

There are many cases, both English and Papua New Guinean emphasising the ex parte nature of such an application. A good statement is that in Ombudsman Commission v Donohue [1985] PNGLR 348 in the judgment of Amet J at p 361:

"Nowithstanding the evidentiary assumption conceded by the commission, these are substantial legal arguments which required careful examination of the legal application of the provisions of the Rules and the Constitution upon the facts of the substantive application. On an application for leave to file an application for judicial review, the Court need only be satisfied as to the requirement of O 16 rr 2,3 and 5. The application, of course, is ex parte and so the Court does not have any other material contesting the application".

It has always been emphasised that the argument on a leave application is limited to whether there is an arguable case to review the decision sought to be reviewed. Argument has also been required when relevant on delay. So the Court does not go into any matters of depth at the leave stage. Some judges have refused leave for other parties to appear on the leave application, but usually there has been a limited leave granted for parties to assist the judge in the form of submissions in any limited area where the judge has doubt.

Whilst the history of leave for judicial review has been that it is an ex parte matter where there are restricted points to be made and the court does not want to be cluttered up with in-depth arguments, the ex parte nature has to be always recognised because of the sometimes urgent nature of the matter. However, we must not forget the basic constitutional rights for the fair hearing of any matter by any court or similar body and the requirement for any court or authority to hold its hearings in public. See the Constitution.

"37(11) A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.

(12) Except with the agreement of the parties, or by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public."

Any fair and reasonable consideration of the above provisions must mean that, without foregoing the ex parte principle in urgent applications for leave, any person named in any proceedings and who has a real interest in the matter sought to be reviewed must have a right to be in attendance and to be represented at any hearing which could affect his or her position or rights, subject to the court limiting such appearance to make submissions only on those limited areas where the court feels it needs assistance.

I will allow the defendants named in the summons to have legal representation before me on this application for leave; however I will limit the areas on which I will receive any submission following hearing the submissions for the plaintiff.

The established principles in seeking judicial review emphasise that an applicant must show that he has an arguable case. The court in considering leave to review is not necessarily concerned with the merits of the decision in respect of which the review is sought but, rather, the decision-making process itself. It is important to remember that the purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which it has been subjected. But it is not the purpose of review to substitute the opinion of the judiciary or the individual judge for that of the authority constituted by law to decide the matter in question. A reviewing court is not a court of appeal.

The established grounds on which administrative decisions can be reviewed can be summarised from what Lord Roskill said at page 953 of the Council of Civil Service Unions Case already referred to:

4. The Wednesbury principle - where a power is exercised in an unreasonable manner.

The plaintiff submits that the extension of the PA 591 was done contrary to the provisions of the Mining Act in that, when the decision was made, the PA had already run out and, therefore, there could not be any extension. The plaintiff also submits that it had lodged a prior application for a prospecting authority and, therefore, under the terms of the Act the plaintiff's application had to be dealt with before that of the fourth defendant, as the latter's application had been lodged after the plaintiff's application.

Further, the plaintiff submits that the hearing of the application by the fourth defendant was done in circumstances whereby the plaintiff was unable to be in attendance as a competing applicant or, at the very least, an objector and, therefore, the Mining Warden had not acted fairly.

To support its application, the plaintiff filed a supporting affidavit which deposed to the details of the lodging of an application for a prospecting authority. Whilst the plaintiff does agree the manner of the lodging did raise some argument, I am not going to consider the regularity or not of that lodging during this application for leave. Further, the plaintiff deposed or annexes details of the PA 591 which do show there was a gap between the expiration of the original authority and the renewal. The plaintiff also recited in its affidavit details of its attempts to, and difficulties associated with such attempts to, attend the Mining Warden's hearings on the application.

I will not go here into the details deposed to support the above submission, but there was enough material to enable me to consider that there may be an arguable case for the plaintiff to have the decision-making process reviewed.

There is one final matter that warrants consideration, namely that of delay. Delay can disqualify a party seeking leave for review. In this matter, the prospecting authority the subject of this application was granted or renewed on 13 November 1991 for a term of 2 years by notice published in the National Gazette on 28 November 1991. This application for leave for review was by way of originating summons dated 16 December but not filed in the court until 31 December. It was put to me that the subsequent delay was because, firstly, the delay in preparing and filing the affidavit to support this application and then problems in obtaining a hearing date for the application. Whilst I must admit that I am wavering on this delay, as I feel that there should have been a greater effort to have the application heard in January or February, I will accept that the summons itself was filed within a reasonable time and will not dismiss this application because of this delay in getting to the hearing of the application.

I grant leave to seek judicial review of the decision of the second defendant to extend the Prospecting Authority 591 to the fourth defendant for a term to expire on 6 September 1993 as notified in the National Gazette G98 dated 28 November 1991.

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Papua New Guinea Law Reports

Amadio Pty Ltd v The State, Lowa, Moke, and Mt Kare Holdings Pty Ltd [1992] PNGLR 218 (5 June 1992)

Papua New Guinea Law Reports - 1992