SC2283

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 7 OF 2022

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

APPLICATION BY:
DAN KAKARAYA
trading as WARNER SHAND LAWYERS
– PORT MORESBY
Applicant

AND:
COFFEE INDUSTRY CORPORATION
LIMITED
First Respondent

AND:
DEPARTMENT OF AGRICULTURE
AND LIVESTOCK
Second Respondent

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Respondent

Waigani: Hartshorn J.
2022: 15th July, 1st August
              
Application for leave to review pursuant to s. 155 (2)(b) Constitution

Cases Cited:
Avia Aihi v. The State (No. 2) [1982] PNGLR 44
Application by Anderson Agiru (2002) SC686
Application by Herman Leahy (2006) SC855
Application by John Maddison and Bank of South Pacific Ltd (2009) SC984 Alphonse Tay v. Newcombe Gerau (2011) SC1097
Benjamin Sengi v. The State (2015) SC1425
Ganglau Landowner Co Ltd v. Medaing (2020) SC1963

Counsel:

Ms. B. Poki, for the Applicant
Mr. N. Kopunye, for the First Respondent
Mr. E. Geita, for the Second and Third Respondents

1st August, 2022

1. HARTSHORN J: This is a decision on a contested application for leave to review a decision of the National Court, brought pursuant to s. 155(2)(b) Constitution.

Background

2. The applicant obtained judgment in favour of its then client. Costs were awarded to be paid by the first respondent to the client. The first respondent entered into a Deed of Settlement and Release with the now former client of the applicant concerning the order of costs (Deed of Settlement). The applicant sought to review the Deed of Settlement. The primary judge found in favour of the first respondent on 29th November 2019 (Deed decision). Leave to review the Deed decision is sought.

3. On 19th December 2019, the applicant filed an application for leave to review the Deed decision (first review application). The Supreme Court upheld an objection to competency and dismissed the first review application as it was an abuse of process and was incompetent. This was because the applicant should have applied for leave to appeal or to appeal (appeal) within the statutory period of 40 days and not applied for a review.

4. On 29th March 2021 the applicant filed an application for leave to appeal the Deed decision and then withdrew the application as it was filed out of time.

5. The applicant now seeks to review the Deed decision a second time.

Consideration

6. Leave is required as the right of appeal was not exercised in the time permitted by statute: Order 5(1) Supreme Court Rules and Avia Aihi v. The State (No. 2) [1982] PNGLR 44; Application by Anderson Agiru (2002) SC686; Application by Herman Leahy (2006) SC855; Application by John Maddison and Bank of South Pacific Ltd (2009) SC984; Alphonse Tay v. Newcombe Gerau (2011) SC1097 and Benjamin Sengi v. The State (2015) SC1425.
7. Where a right of appeal has not been exercised, three criteria must be satisfied before leave can be granted (I refer to the cases cited above). These are:
a)	it is in the interests of justice to grant leave; and
b)	there are cogent and convincing reasons and exceptional circumstances, eg. 	some substantial injustice is manifest or the case is of special gravity; and
c)	there are clear legal grounds meriting a review of the decision.

8. In Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568, Injia CJ (as he then was) said at [5]:

"The criteria for grant of leave for review is settled in various decisions of this Court: Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120, State v Toka Enterprises Ltd (2013) SC1266, Luke Marano v Jack Nouari (2013) SC 1307. The applicant must have standing to bring the application. If the applicant is a party in the proceedings of the court below from which the judgment under review was given, the question of standing does not arise. The applicant must offer a reasonable explanation as to why an appeal against the judgment was not filed within time. The application for leave for review must not be delayed. If there has been a delay in lodging the application, a reasonable explanation must be given. The application must be prosecuted promptly. If there has been a delay in prosecuting the application, a reasonable explanation must be offered.  If the court finds that there has been a delay and no reasonable explanation has been offered for the delay in lodging and prosecuting the application, the court may, nonetheless, grant leave for review if there are exceptional circumstances showing manifestation of substantial injustice that give rise to serious issues of facts or law that warrants a full review of the judgment.  It is also necessary for the applicant to demonstrate that it is in the interest of justice to warrant a review of the judgment."

9. The Deed decision amongst others, was that the first defendant’s obligation to pay the costs of the National Court proceeding pursuant to the court order of 17th December 2015 had been discharged by payment pursuant to the Deed of Release, the first defendant’s objection to Warner Shand’s bill of costs was upheld and Warner Shand pay the first defendant’s costs of the motion.

10. In determining whether there are cogent and convincing reasons, the first consideration is the reason for not filing an appeal within time. The explanation for the delay given by the applicant in evidence is that the applicant decided to file the first review application, as distinct from an application to appeal, “as the matter was purely concerning the legal issue of whether the Applicant’s Solicitor’s equitable lien exist or not and if so, whether it has been ousted by the purported settlement deed.” Further, the applicant deposes that he was not properly assisted by the Rules of Court.

11. This explanation with respect, reveals a misunderstanding of when a review or appeal should be filed. Whether a review or appeal should be filed is not determined by the subject matter of the judgment sought to be challenged. As was cited by the first respondent, in Ganglau Landowner Co Ltd v. Medaing (2020) SC1963, Batari J and Murray J said at [26]:

“It is trite, lawyer incompetence and carelessness are not an excuse.”

12. I am not satisfied that the fact that the applicant mistakenly or otherwise filed an application for leave to review instead of an appeal is a reasonable explanation for not filing an appeal.

13. The next consideration is whether there has been delay in filing the application for leave to review and if so has a reasonable explanation been given. This application for leave to review was filed two years three months and 13 days after the expiration of the time limited to file an appeal. To my mind, a period of about three months from the expiry of the period within which an appeal should have been filed is a period that requires a reasonable explanation to be given.

14. The time taken to file the application for leave to review here is more than 20 times the statutory appeal period of 40 days. In this instance, no reasonable explanation has been given for this period of time taken. That the applicant filed the first review application instead of an appeal and then filed an application for leave to appeal on 29th March 2021 out of time, which was subsequently withdrawn, is not a reasonable explanation in my view.

15. Having found that a reasonable explanation for not filing an appeal within time has not been given and that a reasonable explanation for the period of time taken for the leave application to be filed has not been given, as occurred in Kalu's case (supra), this court may nevertheless consider whether there, "are exceptional circumstances showing a manifestation of substantial injustice that gives rise to serious issues of fact or law that warrants a full review of a judgment": Kalu's case (supra) at [5]; and further, whether it is in the interests of justice that a review of the Deed decision is warranted.
16. In considering the merits of the case sought to be argued by the applicant, I am not satisfied that an arguable case has been disclosed. The remedy that the applicant had was against its former client before his demise or subsequently, his estate.
17. It is not submitted on behalf of the applicant, correctly in my view, that exceptional circumstances exist. Following a consideration of the documentation before the court and the submissions made, I am not satisfied that in this instance there are any exceptional circumstances or the specific exceptional circumstances as described by Injia CJ (as he then was) in Kalu's case (supra). That the applicant may not be able to recover his legal fees from his former client or the estate of the former client because of other reasons does not detract from the fact that that is where the applicant’s remedy lies. That the applicant may not be able to recover his fees by pursuing that remedy does not constitute exceptional circumstances or elevate this case to it being a test case or one which requires this court’s determination on a new or novel point of law. 
18. I am also satisfied that it has not been shown to be and that it is not, in the interests of justice that leave to review be granted. Given this, it is not necessary to consider the other submissions of counsel. Consequently, for the above reasons, this application is dismissed.
Orders
19. It is ordered that:

a)	This application for leave to review is dismissed;
b)	The applicant shall pay the respondents’ costs of and incidental to the said application to be taxed if not otherwise agreed.

__________________________________________________________________
Warner Shand Lawyers: Lawyers for the Applicant                                             
Kopunye Lawyers: Lawyers for the First Respondent                                 
Solicitor General: Lawyers for the Second and Third Respondents