SC1607                                                      

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 12 OF 2000

BETWEEN:
JOHN KOLOKOLO
Appellant

AND:
COMMISSIONER OF POLICE
First Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani:  Injia CJ, Davani & Kassman JJ
2014:  October 17th

ADMINISTRATIVE LAW - Judicial Review proceedings – National Court Rules, Order 16 -Appeal from refusal of leave to apply for judicial review - Whether discretion exercised erroneously when application for leave for judicial review was filed 2 days out of time - National Court Rules Order 16 Rules 3 and 4(2).

Cases cited in the judgment:
Papua New Guinea Cases cited:

Small Business Development Corporation v. Totamu [2010] PGSC 44; SC1054 (8 June 2010)
Sao Gabi & The State v Kasup Nate & Ors (2006)
Irene Davis v Karipe Pitzz (Secretary for Lands and Physical Planning) and The Independent State of Papua New Guinea [1988–89] PNGLR 143 (N703)
Poka Biki [1995] PNGLR 336 (N1299)
 Evangelical Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276 (N1317)
Silas Mareha v The Chairman—Redundancy Monitoring Committee, The Secretary for Department of Works, The Secretary for Department of Personnel Management and The Independent State of Papua New Guinea [1999] PNGLR 517 (N1895)
New Zealand Insurance Co Ltd v. Chief Collector of Taxes [1988-89] PNGLR 522 (SC376)

Overseas Cases cited:

Queen v. Brown [1963] S.A.S.R. 190 at 191

Legislation cited:

National Court Rules Order 16, Rule 4(2) and Order 2 Rule 3(1) 
Supreme Court Act c.37 Section 17 

Counsel:
L Mamu and B Geita, for the Appellant
No appearance for the Respondents 

 17th October, 2014

1.	INJIA CJ:  This appeal was heard ex parte after the Solicitor-General who was to have appeared for the respondents at the hearing failed to attend the hearing.

2.	The appeal arises from a decision of the National Court refusing the appellant leave to apply for judicial review of a decision made by the first respondent to dismiss him from the Police Force. 

3.	There is only one ground of appeal and it is in the following terms:

“ That the learned trial judge was wrong in holding that there was undue delay when he said “... the delay  in filing an application for leave and for review is so astounding that I must refuse the application”, thereby dismissing the Appellant’s application whereas the evidence on record shows that the Appellant’s application for leave for judicial review was filed only two (2) days out of four (4) months prescribed under Order 16 Rule 4(2) of the National Court Rules 1983.” 

4.	The issue before us is whether the trial judge erred in the exercise of his judicial discretion when he found that the delay in bringing the application for leave for judicial review was “so astounding” when the facts before the Court established that the application was filed only two (2) days out of time.

5.	The material facts relied upon to support the application were contained in the Statement in Support of the Application for Leave (the Statement) and in the appellant’s affidavit. On 30th September 1999, the appellant was dismissed from the Police Force on disciplinary grounds. Exactly 4 months 2 days later, on 1 February 2000, he filed an Originating Summons in the National Court, seeking leave to apply for judicial review of the decision. More than 8 months later, on 13 October 2000, the application was heard and dismissed. 

6.	The trial judge gave very brief reasons for his decision as follows:

“There were two decisions that I was to deliver yesterday in the motions but did not so I am going to deliver them now. All right, call the first one.

“The applicant was dismissed from the police force on 23 March 1998 when he was found guilty of two disciplinary offences. The circumstances constituting the charges were carefully submitted to the court. Strictly the charges could be questionable however the purpose of review is on the validity of the process used on dealing with the applicant. On the evidence, it did not seem the charges were laid and responses were required in an ordinary manner.

Be that as it may, the delay in filing an application for leave and for review is so astounding that I must refuse the application. I order that the application be dismissed”.

7.	It is clear from the trial judge’s reasons for decision that the application was dismissed for undue delay in filing the application and not on the merits of the application. It is also clear that the trial judge was referring to the date on which the application for leave for judicial review was filed and not the date on which the application for leave was heard.

8.	I accept the appellant’s submission that clearly, the trial judge’s discretion was based on a misapprehension of the facts pertaining to the date on which the application was filed.  The undisputed evidence and facts were that the application for leave was filed only 2 days outside of the 4 months time period allowed to bring such application  by O 16 r 4 (2) of the National Court Rules. It is clear that the judgment was delayed and rushed. Consequently, the trial judge failed to consider the evidence before him with regard to the date on which the application for leave was filed after the appellant was dismissed. The trial Judge also failed to consider the full merits of the application for leave. For these reasons, I am satisfied that the discretion was wrongly exercised. 

9.	 An important point has arisen with regard to the undue delay in prosecuting this appeal since its filing almost 13 years ago. The appellant’s counsel anticipated the issue might arise and addressed this point in his written submissions. The appellant also explained the delay in his affidavit.  

10.	It is long held that an appeal must be prosecuted with due diligence and without undue or inordinate delay. There is duty on the appellant to prosecute the appeal promptly and with due diligence. It is in the Court’s discretion to dismiss the appeal for want of prosecution for those reasons.  That discretion may be exercised on application by a respondent (SCR, O 7 r 48; O 13 r 16 (1)(a));  on referral by the Registrar (SCR, O 13 r 16 (1) (b)); on referral by the Registrar under s 11 of the Supreme Court Act (SCR, O 13 R 16 (1)(d)); or,  of the Court’s own motion (SCR, O 13 r 16 (c )).  The question whether an appeal should be dismissed for want of prosecution under either of these four procedural options is a threshold point, quiet distinct from the merits of the appeal, that falls to be considered and determined before a hearing on the merits of the appeal. The matters to be considered with regard to the exercise of discretion on dismissal of an appeal for want of prosecution have little or nothing to do with the merits of the appeal and they should not be considered with the merits of the appeal as they tend to cloud the merits of the appeal under consideration.    

11.	In the case before us, the question of undue delay in prosecuting the appeal was argued by the appellant’s counsel towards the concluding part of his submissions. For the reasons I have alluded to above, the question does not arise for our consideration. 

12.	  For the foregoing reasons, I would allow the appeal and remit the matter to the National Court for a rehearing of the leave application. Amongst other matters to be considered by the Court below, the question of delay in bringing such application may also involve a consideration of the long delay in prosecuting this appeal: National Court Rules, O 16 r 4(1). 

13.	     I propose the following orders:

(1)	The appeal is allowed.
(2)	The decision of the National Court made on13th October, 2000 is quashed.
(3)	The matter is remitted to the National Court for a re-hearing of the application for leave to apply for judicial review.
(4)	Parties bear their own costs of the appeal.

14.	 DAVANI. J:  I have read the opinions of the Chief Justice and his Honor, Justice Kassman and agree that the appeal ought to be upheld. I wish to add a few observations which I consider pertinent.

15.	The facts of the appeal are set out in the Chief Justice and Justice Kassman’s opinion, so I need not reiterate those facts.   

16.	In relation to the appellant’s reliefs sought, the Notice of Motion filed on 22nd November, 2000 by his lawyers, seeks orders that the trial Judge’s decision of 13th October, 2000 be quashed and that leave for Judicial Review be granted on the basis that the trial Judge erred in his findings in relation to delay when he refused the application for leave for Judicial Review and reasoned that the delay in filing an application for leave and for review was so “astounding” that he must refuse the application.

17.	It is clear from the trial Judge’s reasons delivered on 13th October, 2000, that not only were they very brief and lacking in substance, but they also did not address all the grounds seeking leave for judicial review, set out in the statement in support of the application for leave, filed on 1st February, 2000. Apart from that, the trial judge also, did not consider the appellants affidavit evidence in support of the application for leave, that were before him that day. The least the learned trial Judge could have done, was to address those very pertinent facts. 

18.	 As pointed out above, the issue is only one of leave for judicial review.  If the State is going to oppose the application for leave, then the appropriate venue for this exercise, is the National Court, and not the Supreme Court.  The National Court, being the court of original jurisdiction, will then properly assess all the evidence including the defendant’s response, then issue the appropriate orders.  I say this because the National Court is the proper forum to hear and consider evidence, together with any evidence from the defendants, in opposition to the application.

19.	 Clearly, the trial Judge has erred in that respect.

20.	 I will allow the appeal and remit the matter to the National Court for a re-hearing of the leave application, to be heard at a time appropriate.

21.	 My orders will be that; 

1.	the appeal is allowed;
2.	the National Court’s decision of 30th October, 2000 is quashed;
3.	the application for leave for judicial Review is remitted to the National Court for a re-hearing;
4.	All parties will pay their own costs of the proceedings.

22.	 KASSMAN J:  On 13 October 2000, the National Court in Waigani refused the Appellant John Kolokolo’s (“Kolokolo”) application for leave for judicial review. 

23.	By notice of motion filed in this proceeding on 22 November 2000, Kolokolo filed his appeal from that decision.  At the hearing of the motion on 16 December 2013, the Public Solicitor acting for Kolokolo was granted leave to proceed with Kolokolo’s motion in the absence of the Respondents.  The Solicitor General, who is on record as acting for the Respondents, failed to appear despite prior notice of the hearing.

24.	The background facts are that Kolokolo was a policeman serving at Salelibu Police Station, Bialla, West New Britain Province at the relevant time.  The provincial capital is Kimbe.  It is alleged Kolokolo failed to arrest suspects in an incident on 3 September 1996 and participated in a protest march on 11 September 1996.  For those reasons, Kolokolo was issued disciplinary charges and subsequently dismissed from the police force.  Kolokolo claims to have received formal advice of his dismissal on 30 September 1999.  I will return to this below.   

25.	Being aggrieved by the decision to dismiss him, Kolokolo filed an application for leave for judicial review on 1 February 2000.  In the Originating Summons, Kolokolo sought “leave to apply for the following orders:

“1.	An order in the nature of certiorari by way of judicial review to remove to this honourable court and quash the decision of the First Defendant in finding the Plaintiff guilty of negligent in the discharge of his duties in that it was alleged that on the 03rd of September, 1999 at Mosa he failed to arrest two murder suspects thereby contravening Section 43(c) of the Police Force Act Chapter No. 65, which decision was made known to the Plaintiff on 30th September, 1999.

2.	An order in the nature of certiorari by way of judicial review to remove to this honourable court and quash the decision of the First Defendant in finding the Plaintiff guilty of improper conduct in that it was alleged that on the 11th September, 1996 at Kimbe he was guilty of improper conduct in that it was alleged that he took part in a group march with Bali Islanders attended to compensation payment made to Chimbu people which decision was made known to the Plaintiff on 30th September, 1999.

3.	Should the orders in paragraphs 1 and 2 above be granted then the Plaintiff claims an order that he be reinstated retrospectively to the date of his dismissal.

4.	Such other order or orders this Honourable Court deems fit pursuant to Section 155(4) of the PNG Constitution.
5.	Costs.”

26.	With the Originating Summons, Kolokolo also filed on 1 February 2000 a Notice of Motion, Statement in Support of the Application for Leave, and an Affidavit verifying the facts.  That affidavit had annexed copies of a number of documents including the disciplinary charges, Kolokolo’s written explanation in response to the charges and the Police Commissioner’s Notice of Penalty with reasons. 

27.	On the face of Kolokolo’s affidavit and those documents alone, Kolokolo presented factual material that, in my respectful view, raise an arguable case for the grant of leave for judicial review.  From the transcript that recorded the oral decision of the court, that was the position taken by the Court however, the decision of the Court turned on determination of the issue of delay.  The question of “delay” is one of a number of considerations on an application for leave for judicial review.  Other main considerations include the applicant has an interest in the matter sought to be reviewed and there is an arguable case for review. 

28.	It appears the Court was satisfied Kolokolo had an interest in the decision being the person whose employment was terminated.  There can be no dispute to this.  The Court was also satisfied Kolokolo had raised a number of arguable points for review.  The Court expressed the preliminary view that the charges were “questionable” and the process by which the charges were laid and Kolokolo’s response given were not issued and obtained in a proper manner.  Further, Kolokolo also argues he was not given the opportunity to be heard on penalty after being found to have committed the disciplinary offences for which he was charged.  Those arguments go to the question of process thus warranting a full hearing and determination by judicial review.  With respect, Kolokolo has raised an arguable case that leave to review should have been granted by the Court on those main issues.     

29.	On 13 October 2000, the National Court refused Kolokolo’s application for leave for judicial review.  There was no written decision delivered.  The transcript records the decision which was delivered orally in court.  The relevant parts of which are as follows: 

“The applicant was dismissed from the police force on 23 March 1998 when he was found guilty of two disciplinary offences.  The circumstances constituting the charges were carefully submitted to the court.  Strictly the charges could be questionable however the purpose of review is on the validity of the process used on dealing with the applicant.  On the evidence, it did not seem the charges were laid and responses were required in an ordinary manner. 

Be that as it may, the delay in filing an application for leave and for review is so astounding that I must refuse the application.  I order that the application be dismissed.”

30.	Kolokolo claims he became aware of the Police Commissioner’s decision dismissing him from the police force on 30 September 1999.  The evidence supports this as discussed below. 

31.	Kolokolo concedes he was told in person of his dismissal by the Provincial Police Commander on 26 May 1998 when they met at the Kimbe Police Station car park.  That was three days after the dismissal was said to be effective.  Without being formally served with the dismissal notice, Kolokolo was told by his superior to pack up his personal effects and he and his wife and children had to vacate the family home the following day.  Kolokolo complied and boarded a ship with his family and personal belongings the next day for Lae and then travelled up the Highlands Highway to his home village at Goroka.  Kolokolo had to personally pay the costs for the transfer of himself and his family and their belongings from Kimbe to Lae and then on to Goroka. 

32.	The Notice of Penalty is undated.  It contains the following “The serious disciplinary charges are considered sustain, by way of penalty, you are dismissed from the Constabulary, effective 23rd of March 1998.” 

33.	In a document titled “Proof of Service”, in the space provided for Kolokolo’s reply.  Kolokolo hand-wrote “I am confused with the way this case has treated me with ... in my line of duty.  This penalty has been delayed for almost a year now when the PPC did not serve it on me.  I am thinking of Judicial Review if I find a lawyer in due course”.  I am unable to decipher the word which should appear in the space that I have left blank in my transcription of the first sentence.  It is signed by Kolokolo and dated 30 September 1999.  It is not clear where Kolokolo was served with his notice of penalty.  It is accepted Kolokolo was formally advised of his dismissal on 30 September 1999. 

34.	In the Appeal Book filed 2 October 2013, there is a document titled “Affidavit” in the name of Kolokolo’s lawyer in the National Court proceedings but it is not signed by the lawyer Zacharias Saka Varimo despite there being a signature of a commissioner for oaths.  Neither does it bear the seal of the National Court.  The annexure to that document is a copy of a practicing certificate issued by the PNG Law Society to Mr Varimo dated 31st January 2000.  From this document alone, it is clear Kolokolo’s lawyer Varimo could not practice as a lawyer until being granted his practicing certificate for the year on 31 January 2000.  Ordinarily, a lawyer is required to hold a practicing certificate from 1 January to 31 December each year provided the lawyer meets all requirements and pays the fee for his professional indemnity insurance and his practicing certificate fee.  From that document, for the month of January 2000, Kolokolo’s lawyer Varimo could not lawfully take instructions and act for Kolokolo and neither could he file the Notice of Motion for Kolokolo until 31 January 2000.  Of course, there was nothing stopping Kolokolo from signing and filing his Notice of Motion in person or through another lawyer who was the holder of a current practicing certificate.  That would explain the failure on the part of Varimo to file the Notice of Motion until 1 February 2000.

35.	In his ground of appeal contained in his Notice of Motion filed in the Supreme Court on 22 November 2000, Kolokolo argues “That the learned trial judge was wrong in holding that there is undue delay when he said, “... the delay in filing an application for leave and for review is so astounding that I must refuse the application”, thereby dismissing the Appellant’s application whereas the evidence on record shows that the Appellant’s application for leave for judicial review was filed only two (2) days out of the four (4) months prescribed period under Order 16, Rule 4(2) of the National Court Rules 1983.”

36.	Order 16, Rule 4(2) provides “In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.”

37.	After being formally advised of the decision on his dismissal on 30 September 1999, Kolokolo filed his application for leave for judicial review on 1 February 2000.  Kolokolo argues that is a period of four months and two days.  By my calculation, it is one day outside of the four full months period which comprised the months of October, November, December 1999 and January 2000. 

38.	As stated above, the National Court found that delay to be “astounding”.  The National Court did not explain why it found the delay of one day to be “astounding”. 

39.	With respect, it appears the National Court may have misapprehended the facts on the issue of delay.  There would certainly have been substantial delay if one considered the period to commence from the date of effect of the decision of dismissal of Kolokolo being 23 March 1998.  If that was the case, the period from then until the date when the application for leave for judicial review was filed 1 February 2000 would represent a period of over one year and 10 months.  That would explain the National Court’s dismay at the “lengthy” and possibly unexplained delay.

40.	Kolokolo’s lawyers refer to two judgments that deal with the issue of delay but in another context. 

41.	In Queen v. Brown [1963] S.A.S.R. 190 at 191 in a case involving an application for extension of time to appeal, the court said “The practice is that, if any reasonable explanation if forthcoming, and if the delay is relatively slight, ay a few days or even a week or two, the Court will readily extend the time, provided that there is a question which justifies serious consideration.”

42.	The Supreme Court in Small Business Development Corporation v. Totamu [2010] PGSC 44; SC1054 (8 June 2010) said “The standard of persuasion required of the applicant is relative to the nature of the delay in bringing the application.  If the delay is ordinary, the applicant should by affidavit offer a reasonable explanation.  If the delay is lengthy, the applicant should by affidavit offer substantial reasons and exceptional circumstances.” 

43.	Although the period under Order 16, Rule 4(2) specifically refers to a period of four months, the National Court has consistently held that the Court must consider the facts in each case before it in determining whether a period between the decision reviewed and the date of filing of the review is so unreasonable such that the discretion to review should be refused.

44.	In Sao Gabi & The State v Kasup Nate & Ors (2006), Injia DCJ (as he then was), in dealing with the issue of delay said:

 “Some 4 years 2 months 38 days passed after the awards were brought to the attention of the Attorney-General, without the plaintiff seeking judicial review. The plaintiff cited a number of cases in which application for judicial review was refused because of the long period of delay.  In The State v District Court; Ex parte Caspar Nuli [1981] PNGLR 192, application was made promptly after 6 weeks from the decision of the District Land Court. In State v Giddings [1981] PNGLR 423, (20 months), NTN Pty Ltd v The Board of PTC [1987] PNGLR 70 (16 months), Arthur Ageva v Bobby Gaigo [1987] PNGLR 12 (15 months of delay in prosecuting appeal from Land Titles Commission decision), The State v Lohia Sisia [1987] PNGLR 333 (5½ years from decision of Minister to declare National Land).

45.	I have also considered a number of other decisions of the National Court relevant extracts from those judgments are repeated below. 

46.	Irene Davis v Karipe Pitzz (Secretary for Lands and Physical Planning) and The Independent State of Papua New Guinea [1988–89] PNGLR 143 (N703) is a decision of Justice Bredmeyer.

“I need to consider the question of delay.  The lease was forfeited by a notice published in the Gazette on 17 April 1986. This action was brought on 5 July 1988. Under s112 of the Land Act, a person can appeal against forfeiture of a lease "within 28 days . . . or such further time as the National Court shall allow". In Placer Holdings Pty Ltd and the Land Act [1982] PNGLR 326, the applicant knew of the forfeiture but chose not to appeal within the time limit. The applicant's lawyer thought that he could persuade the Land Board to regrant the lease. That course of action was unsuccessful and the trial judge held that the applicant's lawyer had not been lulled into any sense of false security by the Lands Department. The applicant applied to extend the time in which to appeal seven months later and the application was refused as being out of time.

A tenant who has had his lease forfeited can sidestep the 28–day appeal time limit by applying for a review of the decision by way of a declaration, see Dent v Kavali [1981] PNGLR 488, or by applying for judicial review, as had been done in this case. However, both of those remedies can be refused if there is undue delay. O16, r4(1) and (2), of the National Court Rules requires an application for judicial review to be brought within four months of the decision made. Where there has been undue delay, whether within the four–month period or outside it, that can be a reason for refusing the relief sought if the court considers the granting of the relief sought would be likely to cause substantial hardship to any person, or substantially prejudice the rights of any person or would be detrimental to good administration. In NTN Pty Ltd v Post and Telecommunication Corporation [1987] PNGLR 70, a 16–month delay was rejected as unreasonable. In The Independent State of Papua New Guinea v Lohia Sisia [1987] PNGLR 102, which was an application for a declaration, a delay of five–and–a–half years was rejected as unreasonable. In this case the delay is nearly two years three months but I propose to overlook the delay and grant the relief sought for the following reasons. First, the land has not been leased to anyone else so the grant of the relief will not cause hardship or prejudice to anyone else. This distinguishes it from the situation in the NTN case where the TV licensee spent large sums of money on its broadcast operation in the 16 months after the grant of the licence. Secondly, Mrs Davis was given some hope that her alternative method of redress, namely lobbying with the Minister to have the land regranted to her, was likely to be successful as per the Minister's minute of 18 July 1986 which I have already quoted. Thirdly, although delay of over two years in challenging an administrative decision is likely to be detrimental to good administration, in this case the State chose not to argue the question of delay.”

47.	In the matter of the Ex-parte application of Poka Biki [1995] PNGLR 336 (N1299) is a decision of Justice Doherty.

“The application in this case was made by way of originating summons filed on the 6 June 1994. In Court files tend to show that the applicant was not present when the District Court hearing proceeded against GIOR KUKA. He says he was not aware of the order concerning the licence for the tuckershop until the police arrived at the premises some period after the Court decision which he estimated to be in the region of 3—4 weeks.  The shop was closed as ordered by the police and after a further period of 1–2 months when the goods in the shop started to go bad, he sought assistance of a lawyer.

There then appears to be a delay whilst they collected some money to pay fees and a further delay that is not explained by the lawyer between the instructions being finalised and the originating summons being filed in the National Court. It is clear from case law, in particular the case of The State v Giddings [1981] PNGLR 423 that the four months referred to in O16 r4 of the National Court Rules is not a mandatory period. Undue delay can be of a lesser period and has been longer (eg: see Amadio Pty Ltd v The State, Patterson Lowa, Isaac Moke, and Mt Kare Holdings Pty Ltd (1993) N1181). It is been held that even two weeks can be unduly long. The Court must consider the facts in each case before it.

In the circumstances I accept that the applicant did not fully realise the existence of the order until the arrival of the police on the premises with the order to be executed. There was some delay on their part and further delay on the part of the lawyer hired. In circumstances of the case, I do not feel there has been undue delay on the part of the applicant in the circumstances I do not dismiss this application on those grounds.”

48.	Application of Evangelical Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276 (N1317), is a decision of Justice Sevua:

“There are numerous cases both reported and unreported on this issue, however I will only refer to a few. In NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini Pty Ltd [1987] PNGLR 70, the Court refused leave as the plaintiff did not have any statutory rights to be heard in respect of the granting of new licences and who was making the application 11 months out of time. (Emphasis added.)

In Ex parte Application of Eric Gurupa (1990) N856, the Court refused leave on the basis that there had been a delay of almost two years. In Simon Manjin v Post and Telecommunication Corporation [1990] PNGLR 288, Hinchliffe J said at 4: "Before granting leave the Judge must be satisfied, in accordance with O16 r(5), that the applicant has a sufficient interest in the matter . . . . That is all he needs to be satisfied about unless there has been undue delay (see O16 r4), before granting leave." (emphasis added). These cases stand for the principle that where there has been undue delay, leave should be refused since the application for leave for judicial review is in effect an application for writ the of certiorari and the time limit under the Rules is four months.

In the present case, whilst I am satisfied that the applicant has a sufficient interest in this matter pursuant to O16 r5, there has been undue delay which has not been satisfactorily explained. In view of the fact that the relevant period specified by the Rules is four months and the applicant had allowed eleven and a half months to elapse before making this application, I am satisfied that there has been undue delay.”

49.	Silas Mareha v The Chairman—Redundancy Monitoring Committee, The Secretary for Department of Works, The Secretary for Department of Personnel Management and The Independent State of Papua New Guinea [1999] PNGLR 517 (N1895) is a decision of Justice Kirriwom.

“There is no question about the Plaintiff having sufficient interest in the matter for review. I am concerned about the long delay in making this application if the Applicant was truly and genuinely concerned about his retrenchment. He got his retrenchment pay, he does not say how much nor does he complain of not receiving it. But he waited for 3 and going to 4 years when he turns around and says he is unhappy with his retrenchment. The Plaintiff has to explain why he had delayed for close to four years before coming to this Court for judicial review. In The Independent State of Papua New Guinea v Lohia Sisia [1987] PNGLR 102 the Supreme Court held that the power to review administrative acts and to grant declaratory orders deriving from s23(2) and s155(4) of the Constitution should not be exercised where there has been an unreasonable delay in seeking relief. A delay of five and half years between the Minister's decision and the application to the Court was held to be unreasonable because no special circumstances existed or exceptional circumstances shown. The principles that apply to judicial review applications under s155(2)(b), s155(4) of the Constitution and O16 r3 of the National Court Rules complement each other, if not overlap in many respects. Therefore in the absence of the Applicant satisfying the Court as to why he delayed for almost four years before coming to this Court, I find he had no good reasons for the delay.”

50.	In this case, on the calculations considered by the court and parties in the National Court, Kolokolo was just one day out of the four month period prescribed by Order 16 Rule 4(2). When considered against the decisions of the National Court referred to above, there is no suggestion the Police Commissioner and the State suffered any prejudice for the short delay of just one day.  Once again, it is clear that the court misapprehended the facts and that was the cause for the erroneous finding of delay which resulted in the refusal of leave for judicial review.

51.	Although this was not raised by Kolokolo’s lawyer, there is one further reason why I am satisfied the discretion was wrongly exercised.  The decision to dismiss was brought to the attention of Kolokolo on 30 September 1999.  Kolokolo filed his application for leave for judicial review on 1 February 2000.  As I have said, that represents a period of four months and one day when counting the four months October, November and December 1999 and January 2000.  However, the period is much shorter for the purposes of Order 16 Rule 4(2) where the court vacation is factored in and not counted in the period from 30 September 1999 to 1 February 2000. 

52.	Under Order 2 Rule 3(1) of the National Court Rules, the National Court has a vacation every year from 20 December to the following year 31 January.  Sub (3) provides “The time of the vacation shall not be reckoned in the times appointed or allowed by these Rules for filing, delivering or amending and pleading unless so directed by a judge nor shall a pleading be delivered or amended, nor judgment be entered in default, unless under the direction of a judge.” 

53.	The National Court Rules clearly state that the period of the Court vacation of 20 December 1999 to 31 January 2000 should not have been counted in the period in issue in this matter which commenced on 30 September 1999 through to 1 February 2000.  The court vacation should have been excluded from calculations of the four month period referred to in Order 16 Rule 4(2). 

54.	Order 2 Rule 3 when applied would result in the four month period under Order 16 Rule 4(2) commencing on 30 September 1999 with a break on 20 December 1999 and then resuming on 1 February 2000 and terminating on 10 March 2000.  The period from 30 September to 20 December 1999 is a total of two months (to 30 November) and twenty days.  Then on resumption on 1 February 2000, allow the month of February and a further ten days takes the four months period to 10 March 2000.  On these details and calculation, Kolokolo was well within the four months period allowed by Order 16 Rule 4(2) for the filing of his application for leave for judicial review.

55.	My interpretation is consistent with that of the Supreme Court which held the period of the court vacation shall not be taken into consideration or calculation of times for certain actions or time limitations as prescribed by the National Court Rules but not where a statute prescribes a time limitation or period as in the time for filing an appeal from a decision of the National Court, a period prescribed by Section 17 of the Supreme Court Act c.37 to be forty days. 

56.	In this regard, I refer to the Judgment of the Supreme Court comprising Justices Bredmeyer, Amet and Barnett in New Zealand Insurance Co Ltd v. Chief Collector of Taxes [1988-89] PNGLR 522 (SC376), relevant extracts from that judgment are repeated below.  

“S155(2)(b) of the Constitution provides that the Supreme Court "has an inherent power to review all judicial acts of the National Court".  This is an application for such a review by New Zealand Insurance Co Ltd.  It is an application for review because the company got out of time to lodge an appeal.  On 25 November 1988, Woods J delivered a written judgment against the applicant company.  Under s17 of the Supreme Court Act (Ch37), a person who desires to appeal must do so within 40 days after the date of the judgment in question, or within such further period as is allowed by a judge on application made to him within that period of 40 days. The 40–day period expired on 4 January 1989. The applicant company wished to appeal but got out of time because its lawyer thought that time did not run during the court vacation. That was a mistake on his part because the appeal period is fixed by statute, by s17 of the Supreme Court Act which I have quoted, and not by the National Court Rules.

Under O2, r3(i), the court has a vacation every year from 20 December to the following 31 January. Sub-rule (iii) provides: "That time of the vacation shall not be reckoned in the times appointed or allowed by these Rules for filing, delivering or amending any pleading unless so directed by a judge nor shall a pleading be delivered or amended, nor judgment be entered in default, unless under the direction of a judge.”

Clearly that sub-rule only applies to times appointed or allowed by the Rules for filing a pleading. The time limit in this case has been imposed by statute. Also a notice of appeal is not a pleading. O8 of the National Court Rules deals with pleadings which are a statement of claim (which may or may not be endorsed on a writ), a defence, a reply, a rejoinder, a cross–claim and a set–off.
In this case, the applicant company failed to appeal in time because its lawyer mistakenly thought that the appeal period did not run during the vacation. That mistake has been made before. It is the background to the case of Wood v Watking (PNG) Pty Ltd [1986] PNGLR 88. In that case, the judgment of the trial judge was handed down on 28 November 1985 and the losing party, Wood, wanted to appeal. His lawyer attempted to file a notice of appeal on 11 February 1986 but was refused by the Registrar as being out of time. He then applied to the Supreme Court for a direction that the appeal was competent and within the time limit on the basis that, although the judgment had been pronounced on 28 November 1985, it had not been entered until much later. The Supreme Court ruled against that argument and said that entry of judgment was not an essential preliminary to the lodging of an appeal and that failure to enter judgment does not affect the running of the time limit of 40 days which commences from the day the judgment is pronounced.

57.	In anticipation that the Respondent may argue that there was undue delay by Kolokolo in the prosecution of the appeal, Kolokolo and his lawyer swore affidavits stating their explanation for the delay in prosecuting.  Kolokolo’s appeal was filed on 22 November 2000 and it was heard on 16 December 2013, a period of some thirteen years.  At the hearing, there was no appearance for the Respondents.  The issue of delay in prosecution of the appeal was not raised for argument at the hearing of the appeal.  I make no comment on the material filed by Kolokolo.

58.	For the reasons stated above, I will allow the appeal and order that Kolokolo’s application for leave for judicial review is granted.  In making this order, I am conscious of the long delay by Kolokolo in prosecuting his appeal.  With respect, I suggest that the National Court hearing the substantive review take account of this period of delay in prosecuting the appeal when considering relief claimed by Kolokolo for damages for loss of wages if applicable. 

59.	I would also order that the costs of this appeal must follow the event. 

60.	I propose the following orders:

a.	The appeal is allowed.

b.	The decision of the National Court of 13 October 2000 is quashed and substituted with an order that leave for judicial review is granted. 

c.	The matter is remitted to the National Court for directions and listing for hearing of the substantive application for judicial review.

d.	The Respondents shall pay the Appellant’s costs of the appeal on a party-party basis, to be taxed, if not agreed. 

Orders of the Court

61.	The Court orders as follows:

1.	The appeal is allowed.
2.	The National Court’s decision of 30th October, 2000 is quashed.
3.      The matter is remitted to the National Court for a re-hearing of the application for leave to apply for judicial review (by majority decision).
4.	All parties will pay their own costs of this appeal (by majority decision).

_______________________________________________________________
Public Solicitor:  Lawyer for the Appellant
Solicitor General: Lawyer for the Respondents