SC1740

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 52 OF 2018

BETWEEN:
KEITH KENNETH KINGSTON
Petitioner

AND:
JUDITH MERLYN KINGSTON
Respondent

AND:
NOEL LIONEL GIRDLER
Co-Respondent

Waigani:  Dingake J
2018 : 11 July & 24 September

Cases Cited:

Aivia Aihi v The State [1982] PNGLR 44;
Peter Dickson Donigi v Base Resources Ltd [1992] PNGLR 110;

Counsel:

Mr. Ian Molloy & Mr. K. Imako, for the Applicant/Petitioner
Mr. William Yep, for the Respondents

2 November, 2018
1. 	DINGAKE J:	 This is an application for leave to review, by the applicant, made pursuant to Section 155(2) (b) of the Constitution and Order 5 Rule 1 of the Supreme Court Rules 2012.
2. 	The application seeks leave to review the decision of the National Court, per David J delivered, orally, on the 25th October, 2017.
3. 	The material background facts to this matter are that on or about the 20th of October, 2016, the applicant filed divorce proceedings in the National Court, in Papua New Guinea, against the first respondent, based on allegations of adultery committed by the first respondent.
4. 	The applicant did not seek any other ancillary relief apart from the dissolution of the marriage.
5. 	It seems to be common cause that both parties are Australian citizens and were married in Australia. They have properties in Australia and in Papua New Guinea (PNG). The applicant is a permanent resident of PNG and has lived in PNG most of his life from October 1968 to date. 
6. 	The applicant avers that the majority of the property and businesses he owns lies or operates within the jurisdiction of PNG. He further avers that he owns eighty percent (80%) of the shareholding in KK Kingston Limited which includes real property. 
7. 	On the 11th of November, 2016, the first respondent commenced proceedings against the applicant in the Family Court of Australia, in Brisbane, seeking orders for settlement of the property of the applicant and the first respondent.
8. 	On the 23rd of November, 2016, the first respondent filed an application in the Family Court seeking orders, inter alia, that the applicant be restrained from pursuing the National Court proceedings and also to restrain him from pursuing any proceedings restraining first respondent from continuing with the property settlement in the Family Court in Australia.
9. 	The applicant made a cross-application for the Family Court proceedings to be stayed.
10. 	The applicant’s stay application was not successful. Instead he was restrained from commencing or continuing proceedings arising out of the marital relationship, in particular, the current proceedings save as required to seek recognition and or enforcement of orders made by the PNG Court.
11. 	The applicant’s appeal to the full court of the Family Court of Australia was not successful.  Subsequent to the Full Court of the Family Court of Australia proceedings, the applicant, on or about the 25th of November, 2016, filed with the National Court, an application seeking to amend the Petition for divorce, to include additional grounds for divorce and also seeking to include ancillary relief in relation to settlement of property.
12. 	The Court refused leave sought by the applicant to file separate petition in relation to the settlement of property holding that the Family Court in Australia was the more appropriate forum in which the issue of settlement of property could be settled. The Court also refused to restrain continuation of proceedings before the family court in Australia.
13. 	The power of the Supreme Court under Section 155(2) (b) of the Constitution is discretionary but the test applied in deciding whether to grant leave to an applicant who has lost the right of appeal is higher than the one applied in the case of leave to appeal under Section 14 of the Supreme Court Act. Leave will only be granted in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity: (Aivia Aihi v The State [1982] PNGLR 44).
14. 	The Court should also consider the reasons offered by the applicant for failure to lodge a notice of appeal within time and the merits of the case sought to be argued.
15. 	In this case, the applicant avers that he has always intended to appeal against the decision of the National Court per David J, but his former lawyers delayed to file the appeal in time.
16. 	In this case, there is no doubt that there has been delay. It seems clear from authorities in this jurisdiction that negligence of a lawyer leading to failure to file a notice of appeal within the required time does not amount to an exceptional circumstance (Peter Dickson Donigi v Base Resources Ltd [1992] PNGLR 110).
17. 	This Court has wide discretion in considering the issue of delay. The court should carefully consider the circumstances of the entire case, including the principles which govern an application for leave referred to earlier and if satisfied that a consideration of the case as a whole requires leave to be granted, it can condone the delay. 
18. 	On a consideration of the totality of the case it seems to me that the applicant has an arguable case and should be allowed to proceed to the Supreme Court. I find that both sides of the argument favouring each of the parties are fairly arguable. I do not consider it appropriate in the circumstances of this case to visit the sins of the applicant’s lawyers on him.
19. 	The applicant commenced proceedings for the principal relief in PNG. The matter of settlement of property is ancillary to the principal relief. Whilst the parties have property in Australia, there seem to be some evidence that the value of the property held by the parties in Australia may be less than the one in PNG because of the assets held by the applicant in KK Kingston company in PNG. All this may suggest that the most appropriate Forum is PNG not Australia.
20. 	I have considered the argument by Counsel for the first respondent that it is not in the interest of justice that two competent Courts of jurisdiction should deal with the same matter, and with respect to which I agree. But it seems to me that the argument favours both sides. The applicant having instituted the divorce proceedings in PNG may not be said to be unreasonable in suggesting that all matters incidental to the divorce proceedings be determined in PNG.
21. 	It seems to me that allowing ancillary relief to be argued in a Court not dealing with the principal relief may not only be inconvenient but it could, arguably, be said to be likely, to lead to injustice.
22. 	In all the circumstances of this case, the application for leave pursuant to Section 155(2) (b) of the Constitution to review is entitled to succeed.
23. 	In the result the application for leave to review is granted
___________________________________________________________
Corrs Chambers Westgarth: 			Lawyers for the Applicant   
Leahy Lewin Lowing Sullivan Lawyer:	 Lawyers for the Respondent