Legal Index: J
Judicial review — leave and standing, the requirement to exhaust other remedies first, the duty to give reasons, and what the courts can do once error is found.
Judicial review — leave and standing
Judicial review under Order 16 of the National Court Rules 1983 requires leave before the substantive application can be made.
NTN Pty Ltd v The Board of the Post and Telecommunication Corporation [1987] PNGLR 70 (National Court)
Leave under Order 16 Rule 2 may be granted where the court is satisfied under Rule 3(5) that the applicant has sufficient interest or standing. The Court identified the matters relevant to the exercise of that discretion:
(a) An arguable case — applying Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617.
(b) Delay — where the application is out of time, whether under Order 16 Rule 4 there has been undue delay, and whether granting leave would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person, or be detrimental to good administration. The Court put the obligation firmly: in the interests of good administration, an applicant challenging a decision with implications for another party or for public administration is under a heavy duty to act expeditiously and fairly.
The Court added that in assessing whether there is an arguable case founded on a denial of natural justice, regard should be had to section 60 of the Constitution, which directs attention to the development of a system of principles of natural justice and administrative law suited to Papua New Guinea.
Exhaustion of alternative remedies
Whether the court will entertain a review while another avenue of redress remains open.
The State v Kapal [1987] PGSC 11; [1987] PNGLR 417 (Supreme Court)
Proceedings for judicial review of a decision should not be entertained where the procedures provided by the governing law have not been completed or exhausted.
The Court also stated the intensity of review of a discretionary decision entrusted to the executive: where a ground for the decision exists, the decision is entirely within the decision-maker’s discretion and is open to review only where it is shown that the decision-maker exceeded or abused its powers, or made a decision no reasonable authority could have made. It followed R v Inland Revenue Commissioners; Ex parte Preston [1985] 2 All ER 327 and R v Chief Constable of Merseyside Police; Ex parte Calveley [1986] 1 All ER 257.
Kekedo v Burns Philp (PNG) Ltd [1988] PGSC 19; [1988-89] PNGLR 122 (Supreme Court) — followed Kapal. Although the National Court’s judicial review jurisdiction exists and may be invoked even where an alternative statutory remedy is available, as a general rule review should not be granted, save in the most exceptional circumstances, until the alternative statutory procedures have been exhausted.
The Court set out considerations relevant to the discretion: the public policy behind the particular legislation; the socio-political circumstances and aspirations of the country; the practicalities of the two procedures, including speed of hearing; and whether the matter turns on particular or technical knowledge more readily available to the statutory review body.
It went further on the facts: it would be an abuse of process for the National Court to grant leave while alternative administrative appeal procedures were actually being pursued.
Reasons, notice, and the orders available
Asiki v Zurenuoc [2005] PGSC 27; SC797 (Supreme Court)
Several points of continuing importance were decided.
Notice to the State. The notice requirements of the Claims By and Against the State Act 1996 apply only to actions founded on contract, tort, or breaches of constitutional rights. Section 5 does not apply to proceedings seeking orders in the nature of the prerogative writs commenced under Order 16, because Order 16 provides a comprehensive and exclusive procedure for judicial review. Punangi v Brown [2004] PGNC 120; N2661 was approved.
Duty to give reasons. The duty to give reasons for an administrative decision is an integral part of the duty to accord natural justice. Where a departmental head or equivalent receives a recommendation from a constitutional institution such as the Public Services Commission, the officer must either implement it or give cogent and convincing reasons for not doing so.
Remedy on appeal. Having found error by the trial judge, the Supreme Court is authorised to set aside the National Court’s judgment and make all orders the National Court could have made — so a successful appellant need not always be sent back for a rehearing.
Which Order to use. In Telikom PNG Ltd v ICCC [2008] PGSC 5; SC906 the Supreme Court held that Order 16 must be used where orders in the nature of the prerogative writs are sought, but that where only a declaration or injunction is sought the plaintiff may proceed under either Order 4 or Order 16. Choosing wrongly has cost litigants their proceedings.
Delay. Order 16 Rule 4 sets a four-month period, and NTN shows that delay is weighed against the prejudice to others and to good administration — not merely against the applicant’s explanation.
See what judicial review is, applying for leave and the time limit.