SC1813

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

SC REV. NO.  5 OF 2019

BETWEEN:
PAM LOGISTIC LIMITED
Applicant

AND:
THE ESTATE OF LATE JIMMY VARIKA
Respondent

Waigani:  	Salika, CJ
2019:		21st, 24th May

SUPREME COURT – Practice and Procedure – Application for Leave to review – serious Constitutional and legal issues raised – clear legal grounds exist for review.

Cases Cited

Jeffery Balakau (1998) PNGLR 437
Anderson Agiru (2002) SC686
Avia Aihi v The State (1982) PNGLR 44
Herman Leahy (2006) SC 855
Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433)

Counsel

Mr. L. Kari, for the Applicant
Mr. D. Bidar, for the Respondent

24th May, 2019

1.      SALIKA CJ: INTRODUCTION: This is an application for leave for Judicial review by PAM LOGISTIC LIMITED.

FACTS

2.      On 28 January 2014, the Respondent commenced proceedings in the National Court styled as WS (Comm) No. 36 of 2014 Jimmy Varika v Pam Logistic Limited and Mendikwae Limited (WS No. 36 of 2014) to evict the Applicant and other occupants from his land described as Portion 2369C Ikuri Maku

3.     On 2 June 2014 and on 18 September 2014, respectively, the Respondent filed two main affidavits in support of his claim.  These affidavits demonstrate how he had initially acquired the fee simple title to the land at Portion 2369C.    

4.      On 11 March 2015, the Respondent died after a short illness.  Prior to his death the Respondent executed his last Will and Testament in which he appointed Neil Marcus Daniel as the executor to his estate.

5.      On 2 February 2016, pursuant to the Respondent’s Will, Neil Marcus Daniel applied for and was granted probate of the Respondent’s estate.     

6.      The trial of the matter in WS No. 36 of 2014 was vacated three times on 14 July 2016, on 11 August 2016 and on 20 September 2016, respectively.  On all those occasions the Applicants lawyer was present and was fully aware of the conduct of the matter.  

7.      On 14 October 2016, all the parties attended court wherein the matter was set down for trial on 14 February 2017.  The Applicants lawyer was present in court and was fully aware of the hearing date.  

8.     On 9 November 2016, the Respondent served a sealed order of 14 October 2016 setting down the matter for trial on 14 February 2017, on the Applicants lawyers.

9.      On 14 February 2017, the Applicants lawyer failed to attend the trial of the matter. A representative of the applicant, Mr Annesh Pillai was in attendance in court.  He requested an adjournment but was refused.  The trial of the matter proceeded there and then after the court was informed and being satisfied that the Applicants lawyer had full knowledge of the trial date.  

10.     On 27 July 2018, the court delivered and published its decision upholding the Respondent’s claim against the Applicant and other occupants.  

11.      On 14 November 2018, pursuant to the Order of 27 July 2018, the Respondent filed a Writ of Possession in WS No. 36 of 2014 and took steps to take vacant possession of the subject land.

12.      On 6 September 2018, the Applicant filed an appeal in SCA No. 137 of 2018 Pam Logistic Limited v The Estate of Late Jimmy Varika 2018, which it discontinued on 11 October 2018 after being prompted by the Respondent and the Registrar of the Supreme Court that the appeal was incompetent as it was filed out of time.  

13.      On 6 December 2018, the Applicant filed an Application for Leave to Review pursuant to Section 155(2) of the Constitution SC Review No. 98 of 2018 against the same decision of Justice Hartshorn in WS No. 36 of 2014 dated 27 July 2018.  That application is identical to the current one in SC Review No. 5 of 2019

14.      Reacting to the Respondent’s Notice of Objection to Competency filed on 27 December 2018, on 30 January 2019, the applicant discontinued SCReview No. 98 of 2018.

15.      On 30 January 2019, the same day it withdrew SCR No. 98 of 2018, the Applicant filed the current Application for Leave to Review in SC Review No. 5 of 2019.  Despite filing it on 30 January 2019, the Applicant served the Application for Leave to Review on the Respondent on 15 February 2019.  The current application in SC Review No. 5 of 2019 is the third attempt by the Applicant to challenge the National Court decision of 14 February 2017 in WS No. 36 of 2014, apart from its previous failed attempts in SCA No. 137 of 2018 and SC Review No. 98 of 2018.  

THE LAW

16.      In Application by Jeffery Balakau (1998) PNGLR 437, the Applicant allowed his statutory right of appeal to expire.  He filed an application for leave to appeal out of time but that application was dismissed for being incompetent.  The court then said that a party who seeks to invoke the powers of the court under S155(2)(b) Constitution must have convincing reasons to satisfy the court as to why it should be granted leave to review.  Such a party must provide a satisfactory explanation why an appeal was not filed within time.  The court’s discretion to grant leave for review underS155(2)(b) is very wide and unfettered.  

17.      However in Application by Anderson Agiru (2002) SC686, the Supreme Court said:

“Section 155(2)(b) is a grant of power to the Supreme Court.  The provision does not deal with a right of any person to invoke that power.  The Supreme Court Act and other laws determine rights of appeal or review.  However, the Supreme Court in Avia Aihi v The State (1982) PNGLR 44 felt that the court may in its absolute discretion allow a limited class of cases for review under Section 155(2)(b)”  

18.      In Application by Herman Leahy (2006) SC 855, the Court followed the Agiru case and said that there are three categories of cases where judicial review power under S155(2)(b) may be  exercised.  They are:- 

(i)	Where parties have allowed a statutory right of appeal to expire (Avia Aihi v The State (No 2) [1982] PNGLR 44).

(ii)	Where a right of appeal is prohibited or limited by law (eg election petition cases where an appeal is prohibited).

(iii)	Where there is no other way of going to the Supreme Court (see SCR No. 5 of 1987; Re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433).

19.      The Court there went on to say:

“Category 1:  Where there is a right of appeal

59.  If there is a right of appeal but it has not been invoked (eg due to expiry of the statutory time limit of 40 days under the Supreme Court Act, Sections 17 (civil appeals) or Section 29 (appeals by persons convicted in criminal cases ), three criteria have to be satisfied before leave can be granted”

1.	It is in the interests of justice to grant leave; and 
2.	There are cogent and convincing reasons and exceptional circumstances, eg; some substantial injustice is manifest or the case is of special gravity; and
3.	There are clear legal grounds meriting a review of the decision.  

20.      In this case the applicant had a right of appeal but his lawyers failed to file an appeal in the 40 days statutory period permitted.  The reasons given for not filing the appeal in time are in my opinion unreasonable and do not provide any good reasons to grant leave.  Moreover this application is made some 2 years after the matter was heard and determined.  Ordinarily this application would be refused.

21.      However the question is raised: is it in the interest of justice to grant leave?  First of all I am disappointed that both counsel in this application did not state the facts accurately to assist the court.  They did not inform the court that a representation of the applicant was present in court on the day of the trial.  At the hearing of the mater by the trial judge on 14 February 2017, I note and it is obvious the lawyer for the applicant was not present.  However, the applicant was present through Mr Annesh Pillai.  On page 11 line 10 of the transcripts, the court asked if there was anybody from PAM Logistics Limited present and Mr Pillai stood up to say he was “representing PAM Logistics.”  Mr Pillai sought an adjournment from the court but the court refused the adjournment and went on to proceed with the trial.  That was the end of Mr Pillai on the transcript to suggest he took any part in the trial on behalf of the applicant.

22.      When the trial was ordered to proceed, was Mr Pillai asked to participate in the trial although he was present?  He was there representing PAM Logistic.  There is nothing in the transcript.  Was he heard on the trial?   The lawyer for the applicant may not have been present but the applicant through Mr Pillai was present.  The issues of the Constitution; the right to be heard and the right to a fair trial immediately arise with respect.  These Constitutional points were not raised by the applicant in this application but after reading the transcripts I raise them now because I think fundamental Constitutional issues; the right to be heard and the right to a fair trial must arise. The applicant’s lawyer was not the party, it was PAM Logistic who was the party and it was present through a representative.  It was not the applicant’s lawyer whose interests were affected, rather it was the applicant PAM Logistic whose interests were affected.  Was it heard?  Was it entitled to be heard on trial?

23.     On that basis alone, I will grant leave for judicial review of the decision of the court.

24.      Leave to review is granted.
________________________________________________________________
PNG Legal Services Lawyers:  Lawyer for the Applicants  	
O’Briens Lawyers: Lawyer for the Respondent