Judicial review is not an appeal. The Court asks whether the decision was made lawfully, not whether it was the decision the Court would have made. The grounds reflect that limit.
The grounds grouped
| Family | Grounds within it |
|---|---|
| Want or excess of jurisdiction | Acting without power; exceeding the power conferred; wrongly deciding a fact on which jurisdiction depends; acting under a delegation that was not authorised |
| Breach of natural justice | Failing to hear the person affected; bias or apprehended bias; failing to give reasons where required; deciding on material the person had no chance to answer |
| Error of law | Misconstruing the empowering provision; asking the wrong question; taking into account irrelevant considerations; failing to take into account relevant considerations; acting for an improper purpose; fettering a discretion by rigid policy; acting on no evidence; unreasonableness |
An appeal asks whether the decision was right. Judicial review asks whether it was lawfully made.
That is why the usual remedy is not a substituted decision but a quashing and remitter: under Order 16 Rule 9(4) of the National Court Rules 1983, the Court may remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.
An applicant who argues that the decision-maker reached the wrong result, without identifying a legal error in how they reached it, has not stated a ground of review.
The first family
Every public power comes from somewhere — a statute, an Organic Law, the Constitution. The first question on review is whether the decision-maker had the power they purported to exercise, and whether they exercised it within its limits.
Typical formulations: the body had no power to make the decision at all; it had power but exceeded the limits; it decided a preliminary question of fact on which its jurisdiction depended, wrongly; it acted under a delegation that the empowering provision did not permit.
Decisions of tribunals constituted under their own legislation — a Leadership Tribunal under the Organic Law on the Duties and Responsibilities of Leadership; a Commission of Inquiry under the Commissions of Inquiry Act (Chapter 31); decisions of the Ombudsman Commission; statutory appointments and dismissals; licensing and approval decisions.
In Peipul v The Leadership Tribunal [2002] PGSC 1; SC706, the Supreme Court dealt with an appeal arising from judicial review of a Leadership Tribunal’s decision. The Tribunal, established under the Organic Law to investigate and determine allegations of misconduct in office, had found the leader guilty on five charges and recommended dismissal. The Court addressed whether the Tribunal had acted within jurisdiction, whether it had acted fairly and reasonably in compliance with the principles of natural justice, and whether the appellate court had power to interfere with the penalty recommended.
The second family
(1) Subject to any Constitutional Law or Act of the Parliament, the principles of natural justice are the rules of the underlying law known by that name developed for the purposes of the common law.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
This is a significant difference from many other systems. Section 59 makes natural justice part of the underlying law, and fixes its minimum content: the duty to act fairly and, in principle, to be seen to act fairly.
Together with section 37 (protection of the law) and section 41 (proscribed acts), it gives an applicant in Papua New Guinea a constitutional footing for a fairness argument, not merely a common-law one. See breach of natural justice.
The third family
Misconstruing the power. The decision-maker read the empowering provision wrongly and so asked itself the wrong question.
Irrelevant considerations. It took into account something the statute did not permit it to consider.
Relevant considerations ignored. It failed to take into account something the statute required it to consider.
Improper purpose. It used the power for a purpose other than that for which it was conferred.
Fettering the discretion. It applied a rigid policy without considering the individual case.
No evidence. There was no material on which the finding could properly be made.
Unreasonableness. The decision was one no reasonable decision-maker could have reached — see unreasonableness.
“Irrelevant consideration” and “relevant consideration” are not free-floating complaints. What is relevant or irrelevant is determined by the statute conferring the power. So the argument must start with the empowering provision and work outwards.
The same is true of improper purpose: the purpose for which the power was conferred is found in the statute, read as a whole.
Getting them into the case
Under Order 16 Rule 3(2)(a), the application for leave must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought.
And under Rule 6(1), no grounds shall be relied on or any relief sought at the hearing except the grounds and relief set out in the statement.
So the statement fixes the case. Plead each ground separately and specifically — identify the decision, the power, the error, and where in the material it appears. A statement that alleges “the decision was unlawful” without more does not comply.
Amendment is possible under Rules 3(4) and 6(2), on terms — but it is far better to get the statement right at the outset.
Establishing a ground does not guarantee relief. Every remedy on judicial review is discretionary, and the Court may refuse relief for undue delay under Order 16 Rule 4(1)(b), because an alternative remedy was available, or because quashing the decision would serve no practical purpose.
Sources
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.