SC2682

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 16 OF 2023

BETWEEN:
PROFESSOR (DR.)
NARAYAN GEHLOT
Applicant

AND:
MICHAEL ALLUY
First Respondent

AND:
MOSES KAWI
Second Respondent

AND:
ALBERT SCHRAM
Third Respondent

AND:
PAPUA NEW GUINEA UNIVERSITY
OF TECHNOLOGY
Fourth Respondent

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fifth Respondent

WAIGANI: HARTSHORN J
12 SEPTEMBER, 2 DECEMBER 2024

SUPREME COURT – PRACTICE AND PROCEDURE - Application for leave to apply for 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 
Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568

Counsel

Mr. G. Konjib for the applicant
Mr. J.F. Unua for the second, third and fourth respondents

1. HARTSHORN J: This is a decision on a contested application for leave to review three decisions of the National Court (Decisions) pursuant to s. 155(2)(b) Constitution. The Decisions were delivered on 28th January 2020, 21st August 2020 and 11th June 2021 in the same National Court proceeding. 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.
2. 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.

3. 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."

4. The Decisions amongst others:
a)	Required the filing of an amended statement of claim which specifically pleaded malicious prosecution with particulars, the compliance with previous Court orders and in default the dismissal of the proceeding.
b)	Ordered the dismissal of the proceeding for want of prosecution and failure to comply with court orders.
c)	The dismissal of the application to set aside the dismissal of the proceeding.

Consideration
5. In determining whether there are cogent and convincing reasons, the first consideration is the reason for not filing an appeal, or in this instance appeals, within time. The evidence given on behalf of the applicant on this issue is by the principal of his former lawyers who acted for the applicant at the relevant time. There is no evidence as to why an application for leave to appeal or appeal was not filed challenging the first two decisions sought to be reviewed. In regard to the third decision sought to be reviewed, the explanation in evidence is that after that third decision was made, the principal had Covid for three months and there was no one able to attend to this matter.
6. There is no explanation why the applicant or another lawyer could not have been advised or instructed to lodge an appeal. For instance, the applicant’s former lawyers by its principal, could have instructed Cook and Co, the lawyers who had been instructed to act on the application to set aside, to file an appeal, because of and notwithstanding the illness of the principal. There is no explanation as to why this did not occur. 
7. I am not satisfied that any explanation has been given in respect of the first two decisions for not filing an application for leave to appeal or appeal within time or that any reasonable explanation has been given for not filing an appeal within time of the third decision sought to be reviewed.
8. The next consideration is whether there has been a delay in filing the application for leave to review and if so, has a reasonable explanation for this been given. The application for leave to review was filed over three years and three months after the expiry of the 40-day appeal period for the first decision and one year eleven months after the expiry of the 40-day appeal period for the third decision. Clearly there has been delay in filing the application for leave to review. To put this period of delay into context, it is equivalent to over 29 times for the first decision and 17 times for the third decision of the statutory appeal period of 40 days within which an appeal must be filed.
9. There is no explanation given for the delay in filing the application for leave to review apart from there being references made to the covid pandemic and the restriction on travel. The applicant did not have to be present within Papua New Guinea for instructions to be given for an application for leave to review to be prepared and filed. Notwithstanding the covid pandemic, international communications continued to operate. I am not satisfied that a reasonable explanation has been given for the delay in filing the application for leave to review. 
10. Having found that no explanation has been given, that no reasonable explanation for not filing appeals within time has been given and that no reasonable explanation has been given for the period of time taken for the leave application to be filed, 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 Decisions is warranted.
11. In considering the merits of the case sought to be argued by the applicant, the case sought to be brought by the applicant was for malicious prosecution and that proceeding was commenced. The prosecution of that proceeding filed by the applicant’s then lawyers proceeded, but it was dismissed. The dismissal in essence was for non compliance with Court orders and for want of prosecution. As to the contention that the primary judge fell into error in making the Decisions sought to be reviewed, particularly the first decision, there may be merit in that contention.
12. The applicant submits that the primary judge fell into error in law or in fact, that there are serious issues to be tried and that as the appeal periods of 40 days have lapsed an application under s. 155(2)(b) Constitution is the only avenue available to the applicant. That s. 155(2)(b) Constitution is the only avenue available to the applicant as he did not file appeals in time, does not ipso facto, mean that the applicant is entitled to be granted leave to review pursuant to s. 155(2)(b) Constitution.
13. 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). This is not a test case and no particular circumstances exist which require this court's determination on a new or novel point of law. In the circumstances of this case, it may be that the applicant has a claim for professional negligence against his former lawyers for their handling and prosecution of the case on behalf of the applicant.
14. I am also satisfied that it has not been shown to be and that it is not, in the interests of justice for leave to review to be granted. Consequently, for the above reasons, this application is dismissed. Given the above it is not necessary to consider the other submissions of counsel.
Orders
15.  The Court orders that:
a)	This application for leave to review is dismissed;
b)	The applicant shall pay the costs of the second, third and fourth respondents of and incidental to the said application to be taxed if not otherwise agreed.
__________________________________________________________________
Lawyers for the applicant: Konjib and Associates Lawyers
Lawyers for the second, third and fourth respondents: Kesno Lawyers