P. Watts for the Applicant
RULING
(Kabui, J):
This is an ex parte application filed bled by the Applicant on 30th
July 2001 for leave to apply for an order for certiorari and mandamus. The
application itself for orders for certiorari
and mandamus was filed also on
30th July 2001 by way of Originating Summons.
The Facts
The Apnt is the registered
owner of the fixed - term estate in Parcel No. 191-052-177 situasituated in Kombuvatu, east of Honiara.
The grant was made by the Commissioner of Lands
in about 1997. The Applicant had constructed some 30 medium class dwelling-structures
on Parcel No. 191-052-177 plus provision for water supply,
electricity and telephone service. On 13th December 2000, the
Commissioner of Lands wrote to the Applicant of the Commissioner's intention
to repossess Parcel No.191-052-177
for the purpose of the resettlement
of Lord Howe settlers now residing at the mouth of the Mataniku River. By
letter
dated 8th January 2001, the Applicant informed the
Commission r of Lands that his offer was $3.8 million for the return of his
property
to the Commissioner of Lands. By a minute dated 25th
January 2001, the Permanent Secretary of Lands and Housing was informed that
the agreed return value of the property
was $3 million or in the
alternative, land in Auki be allocated to the
Applicant if the return value
were to be reduced. Formalities were to be effected by the Office of the
Commissioner of
Lands. By Cabinet Conclusion dated 8th March
2001, the Commissioner of Lands' deal
with the Applicant was rejected. In other words, the deal between the
Commission r of Lands
and the Applicant had been cancelled by Cabinet. The
Applicant now wants tie Cabinet decision removed and the deal reinstated.
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Leave
sought in cation for Certiorari and Mandamus
One
often wonders by les necessary if one wishes to apply for prerogative
wr writs such as certiorari or mandamus or
judicial view for that matter in
some jurisdictions. Why should there be this first stage in the procedure?
One author
said,
...
“The prime object of the requirement of leave is to filter out the
applications of cranks and busybodies who might otherwise
impose an
excessive burden on the process of legitimate administration. The granting
of leave does not prevent a respondent
from applying to strike out an
application, just as applications to strike out are possible i actions begun
by writ or
originating summons. The fact that leave is required, however,
gives the Court an opportunity to control applications of its
own motion,
e.g. refusing leave or permitting them to proceed only in such manner a it
may direct. The Court does not
require extensive argument on an application
for leave but simply needs to be satisfied that the applicant has a prima
facie arguable point”...
(See
Applications for judicial Review, Law and Practice of the Crown Office by
Grahame Aldous and Jon Alder, 1993, Second
Edition at 139). Also, in
Inland Revenue Commissioners National Federation of Self - employed and
Small Businesses Ltd [1981] UKHL 2; [1981] 2 A.E.R 93, 105, Lord Diplock said
“...The need for leave to start proceedings ings for remedies in public law is
not new. It applied previously to applications
for prerogative orders,
though not to civil actions for injunctions or declarations. Its purpose is
to prevent the time
of the court being wasted by busybodies with misguided
or trivial complaints of administrative error, and to remove the
uncertainty
in which public officers and authorities might be left whether they could
safely proceed with administrative
action while proceedings for judicial
review of it ere actually pending even though misconceived"...
His
Lordshipdship continued at page 106,
..."The
hole purp purpose of requiring that leave should firstfirst be obtained to make the
application for judicial
review would be defeated if the court were to go
into the matter in any depth at that stage. If, on a quick perusal of the
material then available, the court thinks that it discloses what might on
further consideration turn out to be an arguable
case in favour of granting
to the applicant the relief claimed, it ought, in the exercise of a judicial
discretion, to
give him leave to apply for that relief. The discretion that
the court is exercising at this stag is not the same as that which
it is
called on to exercise when all the evidence is in and the matter has been
fully argued at the hearing of the application"...
Clearly,
the pe of seeking leave is to avoid applications that are obvioubviously
unnecessary in that they clearly lack
any element of merit even at this
first stage of the procedure.
Th Case
The
evidence in this case does show the Applicant is the regisregistered owner
of the fixed - term estate in Parcel No.
191 - 052 - 177. There is evidence
also that the Commissioner of Lands had dealt with the Applicant regarding
the surrender
of his title for compensation or part compensation and land
allocation at Auki and that follow up steps were to be taken to
complete the
deal between the Commissioner of Lands and the Applicant. The termination of
the deal by Cabinet was a reverse
of the deal between the Commissioner of
Lands and the Applicant. The Applicant does have the right to question it in
Court. There is an arguable case in favour of the Applicant at least at this
stage of his case. I would grant leave sought
by the Applicant. Leave is
granted accordingly. Cost be in the cause.
F.
O.
Kabui
Judge
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