SC2471

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 9 OF 2023

APPLICATION FOR LEAVE TO REVIEW PURSUANT TO 				   CONSTITUTION SECTION 155(2)(b)

BETWEEN:
MICHAEL MINEKA KUNOL
Applicant

AND:
ROSITA KUPUL
as Administrator of Late Kunol Kants
First Respondent

AND:
ALA ANE
in his capacity as the Acting Registrar of Titles and
Department of Lands and Physical Planning
Second Respondent

AND:
BENJAMIN SAMSON
in his capacity as the Secretary of the Department
of Lands and Physical Planning
Third Respondent

AND:
JOHN ROSO
in his capacity as the Minister for
Lands and Physical Planning
Fourth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Hartshorn J.
2023: 13th June, 13th July

SUPREME COURT – REVIEW - Application for leave to review pursuant to s. 155 (2)(b) Constitution

Cases Cases:
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 
Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568
Ganglau Landowner Co Ltd v. Medaing (2020) SC1963
Elizabeth Kavi v. ANZ (2020) SC1951
Motor Vehicles Insurance Ltd v. Fura Opeta (2020) SC1954

Counsel:

Mr. Y. Otmar, for the Applicant
Mr. B. Boma, for the First Respondent

13th July 2023

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

Background

2. The applicant seeks to review a decision of the National Court made on 21st December 2022 (Decision). The dispute the subject of the proceeding in the National Court concerns a certain property in Banz, Jiwaka Province (Property). The Decision amongst others, granted leave for the plaintiff now first respondent to proceed ex parte and for the fifth defendant now applicant to surrender or return the title to the Property to the first defendant now second respondent.

Law

3. 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; Motor Vehicles Insurance Ltd v. Fura Opeta (2020) SC1954.
4. 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.

5. 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."

Consideration

6. 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 in filing an appeal in time given by the applicant in evidence is that the first respondent served the applicant with correspondence containing the terms of the Decision around the second week of January 2023. The applicant then travelled to Port Moresby from Banz and instructed Don Wapu Lawyers around the end of January 2023. Don Wapu Lawyers then needed to conduct a search at the Court Registry to confirm that orders of the Court which were to be appealed and then draft the documents.

7. If the applicant was served at the end of the second week in January, he still had about 14 days left to file an appeal. The applicant could have instructed his lawyers by telephone instead of travelling to Port Moresby. His lawyers could then have conducted a search at the Court Registry immediately. His lawyers could have made an application for an extension of time to file an appeal pursuant to s. 17 Supreme Court Act. There is no evidence as to any of these matters. 

8. Further, I note that the applicant deposes that he was served with documentation on 12th December 2022. He was aware therefore that it was likely that orders were likely to be made on 21st December 2022 concerning him in a proceeding in which he was named as a party. Prudence dictates that he would have ascertained whether orders were made on 21st December in that proceeding and therefore was likely to be aware of the Decision before he was served with correspondence in January.

9. Given the above I am not satisfied that a reasonable explanation has been given for not filing an appeal within time.

10. The next consideration is whether there has been a delay in filing the application for leave to review. This application was filed on 4th April 2023. This is two months and 5 days after the appeal period had expired. This is over one and a half times the statutory appeal period. The explanation given for this delay is that time elapsed as an application to set aside the Decision was made in the National Court and was then withdrawn after the primary judge refused to hear it. To my mind this is not a reasonable explanation. It in essence involves the lawyers for the applicant making an incorrect decision on how to progress matters. The actions or inactions of a lawyer are not a reasonable excuse for the lawyer’s client not to comply with a statutory time limit (see Elizabeth Kavi v. ANZ (2020) SC1951 at [10] and Ganglau Landowner Co Ltd v. Medaing (2020) SC1963 at [26]). Here, notwithstanding that the time limit to be complied with has passed, the applicant’s lawyers’ actions have caused the delay. Those actions are not a reasonable excuse.

11. 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 Decision is warranted.
12. In considering the merits of the case sought to be argued by the applicant, although there is merit in the argument that the service requirements of Order 16 Rule 5 National Court Rules were not complied with, service was effected upon the applicant. Further, there is no evidence as to the merits or otherwise of the substantive matter which was before the National Court.
13. Following a consideration of the documentation before the court and the submissions made, I am not satisfied in this instance that it has been made out that there are or that there are any exceptional circumstances or the specific exceptional circumstances as described by Injia CJ (as he then was) in Kalu's case (supra). This is not a test case or one which requires this court’s determination on a new or novel point of law. 
14. 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
a)	This application for leave to review is dismissed;
b)	The applicant shall pay the costs of the first respondent of and incidental to 	the said application for leave to review.
__________________________________________________________________
Don Wapu Lawyers: Lawyers for the Applicant                                             
Boma Lawyers: Lawyers for the First Respondent