SC2603

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 16, 18 AND 19 OF 2024

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

BETWEEN:
NICHOLAS WAUMA
First Applicant

AND:

Et al
Second, Third and Fourth Applicants in
each of the three proceedings

AND:
NAMBAWAN SUPER LIMITED
Respondent

Waigani: Hartshorn J.
2024: 14th & 26th  June

SUPREME COURT – practice and procedure -    Applications 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 
Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568
Motor Vehicles Insurance Ltd v. Fura Opeta (2020) SC1954

Counsel:
Mr. R. Yallon, for the Applicants
Mr. M. Adadikam and Mr. N. Pip, for the Respondent

26th June 2024

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

Background

2. The applicants seek to review a decision of the National Court made on 16th November 2020 (Decision). The Decision followed a trial of three related proceedings. In the Decision the primary Judge issued orders which amongst others, gave vacant possession of the land known as Portions 2156, 2157 and 2159 Milinch Granville, Fourmil Moresby, NCD (Land).

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. On behalf of the applicants the evidence is that the delay was caused by the Governor of the National Capital District, Hon Powes Parkop as he had assured the applicants that he would reach an agreement with the respondent to grant a win-win situation. Moreover, the evidence is that the applicants were advised by the Governor not to pursue the matter in court as he was in discussions with the board of the respondent. This assurance from the Governor kept the applicants from filing an appeal, it is deposed.

7. The only evidence of the Governor on this issue or at all is contained in a copy of a letter dated 13th June 2024, in which the Governor refers to visiting “Bushwara/Saivara on four occasions to speak to the community following the 2021 National Court decision in which it ruled in favour of” the respondent. The Governor confirms that in August 2021 he assured settlers that he had meetings with the respondent board and had discussions for a win-win solution. Further, the Governor states that his advice then was “due to the fact that you all had exhausted the Court process and therefore it was good to negotiate”. This implies that the time in which to appeal had already expired. This letter does not refer to the applicants being advised not to pursue an appeal. The letter also refers to events that occurred in 2021 and specifically 26th August 2021 which is about eight months after the time by which an appeal should have been filed.

8. That discussions may have been ongoing between the parties or between the Governor and the respondent does not alleviate the requirement for the applicants to file an appeal within time. 

9. A Judge may allow a further period of time after 40 days after the date of the judgment sought to be appealed so long as an application is made within the said period of 40 days. There is no evidence of any application for an extension of time to file an appeal being made by any of the applicants. I am not satisfied on the evidence 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 applications for leave to review and if so, has a reasonable explanation been given. Here, the applications for leave to review were filed over three years and five months after the Decision. By comparison, this period of time is over 30.5 times the period of time permitted by statute to file an appeal. This clearly constitutes a significant period of delay which requires an explanation. In the case of Application by John Maddison and Bank South Pacific Ltd (2009) SC984, a period of nine months was considered inordinate and inexcusable. The period of delay here is more than four and a half times the period of delay in Maddisons’s case (supra). There is no explanation for the delay of over three years and five months in evidence. I proceed on the basis that the explanation given for not filing an appeal within time is also the explanation for the delay in filing the applications for leave. On the evidence, I am not satisfied that a reasonable explanation has been given.

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. The cases sought to be argued by the applicants are amongst others, that the primary judge failed to correctly consider the full details of the titles to the Land, that the titles on which the primary judge based his ruling differed from the existing titles and that the primary judge gave orders for vacant possession without considering the correct version of the titles to the Land.
13. The respondent submits that only minor errors or misdescriptions were made by the primary judge. These did not lead to the possibility that a different decision should have been made by the primary judge. Further, it is clear that the respondent has indefeasible titles to the Land. The respondent’s titles to the Land have never been challenged in court and there is no challenge to the respondent’s titles or any evidence of such challenge.
14. The errors in the misdescription of the titles in the Decision of the primary judge are merely that and do not affect the Decision. I note the reference to the volume and folio numbers in the orders made in the Decision for OS 757 of 2019 and OS 758 of 2019 is to volume and folio numbers for Portion 2157 for OS 755 of 2019. Further, in [7] of his Decision, the primary judge defines the correct descriptions of the Land by the use of bold type in brackets. The evidence before the primary judge included the three State Leases for the Land. They are annexed to the affidavits of George Koi. I note that the primary judge states that all of the evidence at the trial was tendered by consent. This evidence is not the subject of challenge.
15. I am not satisfied that on a perusal of the merits of the cases sought to be argued by the applicants that it has been established that the applicants have an arguable case that the primary judge fell into error, or that they have an arguable case with any prospects of success.
16. As to whether there are any exceptional circumstances that exist in this instance or any exceptional circumstances showing a manifestation of substantial injustice, I am not satisfied that any have been established. The indefeasible titles of the respondent to the Land have not been and are not challenged, the applicants do not have any or any better titles to the Land than the respondent. Further, the applicants have been aware for a considerable period of time that they are to vacate the Land.
17. In addition, there are no 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.
18. I am also satisfied that it has not been shown to be and that it is not, in the interests of justice, which is justice according to law, that leave to review be granted. Consequently, for the above reasons, these applications are dismissed. Given this, it is not necessary to consider the other submissions of counsel.

Orders
a)	These three applications for leave to review are dismissed.
b)	The applicants shall pay the respondent’s costs of and incidental to the said applications to be taxed if not otherwise agreed.
__________________________________________________________________
Yallon & Associate Lawyers: Lawyers for the Applicants                                  
Nambawan Super Limited Legal Division: Lawyers for the Respondent