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Review Pursuant to Constitution Section 155(2)(b); Application by Lawrence Bokele [2002] PGSC 19; SC682 (5 April 2002)

SC682
PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC Review No. 41 of 2001

REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(B)

APPLICATION BY LAWRENCE BOKELE
TO REVIEW THE DECISION OF THE NATIONAL
COURT REFUSING LEAVE TO REVIEW DECISION OF
POLICE COMMISSIONER

Waigani: Kapi DCJ., Gavara-Nanu J., Davani J.
26th March, 5th April 2002

Application for Judicial Review under s 155(2)(b) of the Constitution – proper principles considered.

Application for leave for judicial review under O 16 r 3 of the National Court Rules – whether consent of parties to grant leave is in itself a valid ground to grant leave?

Counsel:
P.Ame for the applicant

J. Palek for the respondents

5th April 2002

BY THE COURT: This is an application for review under s 155 (2) (b) of the Constitution.

The circumstances giving rise to the review are these. The Police Commissioner terminated the applicant’s employment as a policeman for misconduct. He applied for judicial review of the Commissioner ‘s decision under O 16 of the National Court Rules (Rules). The matter came before the National Court on 8th June 2001 to determine leave for judicial review under O 16 r 3 of the Rules. At the hearing, counsel for the respondents consented to the grant of leave. However, the National Court after considering the merits of the application, refused leave and dismissed the application on 22nd June 2001.

The applicant was not notified of the date of the delivery of judgment and was not made aware of the judgment until 30th July 2001 when he discovered upon his own enquiry at the registry. The applicant instructed his lawyers to file an appeal on the same day. This gave the lawyers only two days within which to file an appeal or an application for extension of time within the 40 days. The lawyers did not file the appeal within time but purported to do so on 14th August 2001 and the registry rightly rejected it as out of time.

As a consequence, the lawyers filed this application for review under s 155 (2) (b) on 26th September 2001, two months after the 40 days expired.

The principles applicable to judicial review under s 155 (2) (b) of the Constitution are now well settled. Where an applicant fails to exercise the right to appeal within the period stipulated by statute, the Supreme Court may review the decision from the court below in the exercise of its inherent jurisdiction (Avia Aihi v The State [1981] PNGLR 81. An applicant must satisfy the Court (1) why the statutory period was allowed to expire and (2) show that the case merits a hearing (see Avia Aihi v The State (No. 2) [1982] PNGLR 44 at 45 per the joint judgment of Kidu CJ and Andrew J). They set out the nature of the onus the applicant must discharge at pages 46-47.

In the present case, the applicant discovered the delivery of the judgment on 30th July 2001, two days before the 40 days expired. The applicant in his affidavit explained that he immediately instructed his lawyers on the same day and paid the K50.00 requested by his lawyers. The applicant himself did everything possible in the circumstances and instructed his lawyers.

However, the lawyers failed to file the appeal or application to extend time within the remaining two days. The lawyers failed to file an affidavit explaining why they allowed the two days to expire. This conduct would amount to negligence on the part of the lawyers. The negligence of a lawyer is not a ground for exercising the discretion to grant leave to review (PNG v. Colbert [1988] PNGLR 138). However, we would not determine the result of this review on this ground alone.

The application raises several grounds on the merits of this application:

(1) The respondents consented to leave sought by the appellant thus his Honour erred in law and in fact in not exercising his discretion to allow the matter to proceed to review.
(2) His Honour erred in law and or fact to substantially determine the appellant’s case without the appellant prosecuting his own case through counsel thus denying the appellant a right to a fair hearing pursuant to s 59 (2) of the Constitution.
(3) His Honour erred in law or fact in not considering the fact that the appellant had no way to have his dismissal review except by the National Court.
(4) His Honour erred in law and in fact that his Honour did not rule whether or not the appellant has sufficient interest in the matter and whether the decision to dismiss the appellant was reasonable in the circumstances of the whole case.

We can deal with grounds (2), (3) and (4) very briefly. Ground (2) has no merit in that the issue before the trial judge was one of leave for judicial review and he did not deal with the substantive issues in the judicial review. We would dismiss this ground.

Equally ground (3) has no merit. There is no question that the applicant applied to the National Court to review the Commissioner’s decision. Under O 16 r 3, the applicant is required to obtain leave before the National Court may review the substantive issues. The applicant was represented by counsel and the trial judge dealt with the application in accordance with the law and refused leave. We would dismiss this ground.

Ground (4) raises two issues. The first is whether the applicant had sufficient interest in the matter? This was not raised as an issue before the trial judge. He expressly referred to this in his judgment:

"In the present case, there appears to be no issue on the requirement that must be met before the Court can grant leave for judicial review".

He proceeded on the assumption that the applicant has sufficient interest. There is no merit on this ground and we would dismiss it.

The second issue raised under ground (4) relates to the reasonableness of the penalty imposed on the applicant. In the statement filed pursuant to O 16 r 3 (2) (a), the applicant raised no ground relating to penalty. This ground was not raised before the trial judge at the hearing, and therefore, he is not entitled to raise it before us. We would dismiss this ground.

The main issue relates to consent of the parties in ground (1). The circumstances under which this ground is raised are set out in the record:

"Mr. Ame: Yes, your Honour. In that matter, I appear for the applicant, and my friend Mr Palek appears for the three defendants. We have consented to have my client be granted leave as per the notice of motion. We will have orders filed this afternoon.

His Honour: Is it a matter of consent or should the court have to look at it to see whether it is proper case for judicial review?

Mr. Ame: Well, your Honour, on the part of the defendants, they have no objection, If I can put it that way.

His Honour: All right, I will adjourn to give consideration to it whether to endorse the consented application. I think in the judicial review cases, the court ultimately has the control as to whether the case is one that is appropriate for judicial review."

The trial judge dealt with the issue in the following passage:

"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 review only if it is satisfied that all the pre-requisites as requirements are met in a case before it. It follows therefore that, if the opposite is the case, than the application should be refused. Accordingly, in my view leave can not and should not be granted readily because there is no objection 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 ............... 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.

For these reasons, I rule that the consent of the parties do not necessarily mean that, the court should grant leave. Instead, the court charged with a duty to only allow cases deserving judicial review, has the power to determine whether or not leave should be granted. Hence, I am of the view, that the consent of the parties to a grant of leave does not preclude the court from exercising its filtering jurisdiction. Hence, I find that the consent of the parties to a grant of leave does not preclude the court from exercising its filtering jurisdiction. Hence, I find that the consent of the parties in this case does not preclude this court from determining the application or the next issue on its merits on the basis of the material placed before it. I now proceed to consider the second issue."

Counsel for the applicant submits that consent by the parties to grant leave is in itself a ground for granting leave for judicial review. He relies on Ila Geno and Others v The State [1993] PNGLR 22.

On the other hand, counsel for the respondents submits that the trial judge did not make any error in his ruling and therefore we should uphold the decision.

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 can not 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.

The trial judge then proceeded to deal with the question whether on the materials there was an arguable case. He concluded that there was no breach of the principles of natural justice, error of law, excess of jurisdiction or any other procedural errors and consequently, he was not satisfied that the applicant had any arguable case and dismissed the application. The applicant has not raised any of these issues in the grounds for review and we will not deal with them in this decision.

In the result we would dismiss the application for review with costs to the respondents.
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Lawyers for the Applicant: AME LAWYERS

Lawyers for the Respondents: SOLICITOR GENERAL