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Investrar Ltd v Westpac PNG Ltd [2025] PGSC 96; SC2795 (30 October 2025)

SC2795

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCAPP NO. 28 OF 2025 (IECMS)

BETWEEN:
INVESTRAR LIMITED
Applicant

AND:
WESTPAC PNG LIMITED
First Respondent

AND:
JIN WOO LEE
Second Respondent

WAIGANI: COLLIER J, POLUME-KIELE J, ELIAKIM J
30 OCTOBER 2025

PRACTICE AND PROCEDURE – Rehearing of Application for Leave to Seek Judicial Review – where applicant seeks rehearing of application for leave to seek judicial review that was dismissed by single Judge of Supreme Court – whether section 10 of the Supreme Court Act 1975 permits rehearing of application for judicial review

The applicant was unsuccessful in a proceeding before the National Court concerning a debt owed to the first respondent. The applicant applied to the Supreme Court for leave to seek judicial review of that decision of the National Court. A single Judge of the Supreme Court dismissed the application for leave to seek judicial review. The applicant wrote to the Supreme Court Registry seeking a rehearing of the leave application by the full Supreme Court.

Held:

Section 10(2) of the Supreme Court Act 1975 prescribes the types of matters that may be reheard following determination by a single Judge of the Supreme Court. An application for leave to seek judicial review is not a type of matter prescribed by s 10(2). Therefore, the Supreme Court does not have jurisdiction to rehear an application for leave to seek judicial review.

Cases cited
Application by Justice Foundation for Pogera Ltd [2025] SC2778
D'Attanasio v The State [2025] SC2735
Raitano v Raminai [2018] SC1683
Powi v Southern Highlands Provincial Government (2006) SC844
Tulin v Toyota Tsusho (PNG) Ltd (trading as Ela Motors) [2019] SC1882
Yama v Pariwa [2025] SC2722

Counsel
Mr P Mawa with Mr J Lome, for the applicants
Ms S Peri, for the first respondent

REASONS FOR JUDGMENT

1. BY THE COURT: Before the Court is an application to re-hear an application for leave to seek judicial review of a decision of the National Court.
   
2. The applicant (Investra Limited) seeks the leave of this Court to review the whole of the decision of his Honour Justice David Cannings in proceeding OS 684 of 2018, delivered on 17 December 2024 (National Court Decision).
   
3. The National Court proceedings between the parties concerned a loan given by the first respondent (Westpac Bank (PNG) Limited) to Investra). For reasons that are not necessary to explain for the purposes of these reasons, Investra fell into arrears in the repayments of that loan. The National Court made Orders in favour of Westpac, including by issuing a Writ of Possession against Investra.
   
4. On 30 April 2025, a single Judge of the Supreme Court heard Investra’s application for leave to review the National Court Decision. His Honour Justice Cannings delivered ex tempore judgment, refusing Investra’s application for leave to review (Leave Decision).
   
5. Following the Leave Decision, Investra’s lawyers wrote to the Court’s Registry. In that letter dated 30 April 2025 the lawyers wrote as follows:
   

On Wednesday 30^th April 2025 at 9.30am, the Supreme court constituted by his Honor Justice Cannings heard the Applicant’s Application for Leave to Appeal filed 11^th April 2025 and at the same time delivered an ex-tempore ruling refusing the leave application.
Our client being aggrieved by the decision, issued instruction for the same Leave Application to be moved before the Court pursuant to Order 11 Rule 27 of the Supreme Court Rules 2022 as amended (SCR) ad [sic] section 10(2) of the Supreme Court Act (SCA) .
Therefore this letter serves as our requests pursuant to Order 11 Rule 27 of SCR for our client’s Leave Application filed 11^th April 2025 to be re-listed for hearing before the Court at the earliest possible date.

6. We note, in fact, that the matter heard by Cannings J was not an Application for Leave to Appeal as was described in the letter dated 30^th April 2025 – it was an Application for Leave to Review. When we raised this issue at the hearing today there was no dispute that the application the applicant sought revisited was an Application for Leave to Review pursuant to s 155(2)(b) of the Constitution and Order 5 Rule 1 of the Supreme Court Rules 2012.
   
7. Section 10 of the Supreme Court Act provides:
   

10 POWERS THAT MAY BE EXERCISED BY JUDGE
(1) Any power of the Supreme Court under this or any other Act
(a) to give leave to appeal; or
(b) to extend the time within which notice of appeal or of an application for leave to appeal may be given; or
(c) to admit an appellant to bail,

may be exercised by a Judge in the same manner as it may be exercised by the Court.

(2) Where a Judge refuses an application in relation to a matter specified in Subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court.

8. Order 11, rule 27 of the Supreme Court Rules 2012 provides that:
   
   27. Where a Judge refuses an order sought on an application pursuant to s 10(1) of the Act, that application shall not stand dismissed, but shall remain on foot, and the same application may be moved before the Court pursuant to s 10(2) of the Act, provided that a written request in that behalf is served on the Registrar within 14 days of the order refusing relief.
9. An “appeal” is defined by s 1 of the SC Act to include:
   

...the reservation of a case, a point in a case or a question of law for the consideration of the Supreme Court under Section 15 or 21;

10. We further note s 155 of the Constitution which, relevantly for the purposes of the present application, provides:
    

155. THE NATIONAL JUDICIAL SYSTEM.
...

(2) The Supreme Court –

(a) is the final court of appeal; and
(b) has an inherent power to review all judicial acts of the National Court and
(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.

...
(4) The Higher Courts of Justice have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

RELEVANT CASE LAW

11. In Raitano v Raminai [2018] SC1683 Hartshorn J considered an application to extend time within which to give an application for leave to review a National Court decision that dismissed an Election Petition. His Honour noted that the applicant conceded that the provisions of the Supreme Court Rules did not provide a provision pursuant to which the extension of time which the applicant required may be granted. The applicant relied on s 10(1) of the Supreme Court Act and s 155(4) of the Constitution. In respect of this application his Honour observed:
    
    5. Section 10 Supreme Court Act confers any power of the Supreme Court to amongst others, extend time within which notice of appeal or an application for leave to appeal may be given, upon a Judge of the Supreme Court. This section does not confer jurisdiction upon the Supreme Court or a Judge of the Supreme Court in respect of a review pursuant to s. 155(2)(b) Constitution or an application to extend time within which an application for leave to review pursuant to s. 155(2)(b) Constitution, may be given. Consequently, s. 10 Supreme Court Act is not able to be relied upon by the applicant for the relief that he seeks.
    6. As to the reliance upon s. 155(4) Constitution, I reproduce the following passage from the joint decision of Salika DCJ and Hartshorn J in Boochani v. Independent State of Papua New Guinea (2017) SC1566 at [39]:

“As was stated in Louis Medaing v. Ramu Nico Management (MCC) Limited (2011) SC1156 at [10] – [12]:

“10. Section 155 (4) Constitution has been considered on numerous occasions by this Court. It has been interpreted as conferring jurisdiction on the court to issue facilitative orders, such as prerogative writs or an injunction, in aid of the enforcement of a primary right conferred by a law: SCR No 2 of 1981 [1981] PNGLR 150 at 150 and Ume More v. UPNG [1985] PNGLR 401 at 402.

11. Section 155 (4) is not however the source of any substantive rights, as stated by Kidu CJ in SCR No 2 of 1981 (supra):

“The provision under reference.... does not.... vest in

the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155 (4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement.”

12. We also make reference to Powi v. Southern Highlands Provincial Government (2006) SC844 in which the Court, after giving detailed consideration to s. 155 (4) said that in its view, there are about five important features or attributes of that section. They are:

“1. The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make “such other orders as are necessary to do justice in the particular circumstances of each case” before the Court;

2. Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;

3. Where remedies are already provided for under other law, the provision does not apply;

4. The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of number (sic) it is constituted, except as may be provided for by any law; and

5. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law.”

We respectfully agree with the views expressed in Powi (supra).” ”

(emphasis added)

12. We note that the analysis of the Supreme Court in Powi v Southern Highlands Provincial Government (2006) SC844 was reiterated and adopted as recently as May 2025 in D'Attanasio v The State [2025] SC2735 (see also such recent cases as Yama v Pariwa [2025] SC2722 at [16]-[20].
    
13. In Tulin v Toyota Tsusho (PNG) Ltd (trading as Ela Motors) [2019] SC1882 Salika CJ considered an application very similar to that presently before this Court. His Honour said:
    
    13. With all respect, the constitutional scheme under s. 155, s 161 and s162 of the Constitution appears to be that the jurisdiction of the Supreme Court may be exercised by a single judge of the Supreme Court. See s. 162 (2) of the Constitution. In this case, the applicant went before a single judge of the Supreme Court on 8 May 2019 for leave for judicial review invoking s. 155 (2) (b). His application was heard but leave was refused by the single judge of the Supreme Court.
    14. On 13 May 2019, he wrote a letter to the Registrar of the Supreme Court stating that the applicant was not satisfied with the single judge’s decision and wished to have the leave application for judicial review under s. 155 (2) (b) of the Constitution be heard by the full Supreme Court pursuant to s. 10 (2) of the Supreme Court Act. He stated further that in compliance with Order 11 Rule 27 of the Supreme Court Rules 2012, he was asking for the same leave application to be listed for directions hearing.

...

16. With respect, s 10 of the Act refers to power of the Supreme Court on appeal matters and gives power to a single man Supreme Court judge to hear the matters enumerated under subsection one. Subsection two enables an appellant to go to the full court if he is still aggrieved for that Court to determine.
17. With respect, Section 10 (2) of the Supreme Court Act does not enable the applicant to go to the full Court of the Supreme Court to invoke the powers under s. 155 (2) (b) of the Constitution. The jurisdiction under s. 155 (2) (b) is not and with respect cannot be exercised or invoked under s. 10 (2) of the Supreme Court Act. The jurisdiction under s. 10 (2) of the Supreme Court Act is for appeals only.
18. The application by the applicant to have the application for directions hearing is therefore mischievous and misconceived in my respectful view. For that reason alone I would dismiss the application.
    
14. Recently in Application by Justice Foundation for Pogera Ltd [2025] SC2778 a five-member Bench of the Supreme Court heard an application arising from the taxing of a bill of costs following an application under s 18(1) of the Constitution. Taxation of the costs of the fourth intervener in that matter was conducted on 30 November 2023, with the decision of the taxing officer issued on 12 November 2024. The decision was duly amended and issued on 23 January 2025, with the certificate of taxation issued on 23 January 2025. The applicant filed an application for leave to review the taxing officer’s decision pursuant to Order 12 Rule 37 of the Supreme Court Rules. Justice Hartshorn dismissed the application on 20 March 2025. Aggrieved by that dismissal, the applicant filed a fresh application pursuant to Order 11 Rules 25 and 26 of the Supreme Court Rules. Order 12 Rule 37 of the Supreme Court Rules provides:
    

(1) A Court or a Judge may review the decision of a Taxing Officer, only if the taxing officer has given a certificate in accordance with that decision.
(2) A party aggrieved by the taxed costs may, within 14 days from the date of issue of the Certificate of Taxation, apply to the Court or a Judge, for leave to review the taxing officer’s decision, such application to be supported by affidavit and shall be served on the other party, 3 clear days before the date of moving the application.
(3) The application shall be made by Notice of Motion and supported by affidavit which shall, amongst other things, specify the list of items to which the applicant objects and must state concisely the nature and grounds of each objection.

15. Orders 11 Rules 25 and 26 provide:
    
    25. A party dissatisfied with a direction or order given by a Judge under these rules or s 5 of the Act, may, upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just.
    26. Proceedings under Rule 25 shall be instituted by notice of motion filed in the substantive proceedings seeking the same orders as were sought before the single Judge.
16. Materially to the present case, the majority in Porgera held:
    
    28. In the case of Thomas v Bando (2024) SC2537, application was made under O11 r 25 and r 26 for the Court to hear an objection to competency of an application for leave to review after the objection was dismissed by a Judge. The Court held this to be an abuse of process; that having had the objection dismissed at the leave stage, the applicant was not allowed “a second bite of the cherry”.
    29. The proposition that a second application to the Court after a denial of the same application by a Judge constitutes an abuse of process, where a Rule provides that the application may be made to the Court or a Judge, was endorsed in Minape v Rosso (2024) SC 2591. That case concerned an objection to competence of an application for leave to review an election petition. Pursuant to O 7 r 17(1)(a) of the Supreme Court Rules, such objection may be heard by the Court or a Judge. After the objection was refused by a Judge, another application was made under O11 r 25 and r 26. Following the decisions in Miriori v Daveona, Giwi v Popuna and Thomas v Bando, the Court dismissed the objection, observing that the Rule necessarily implies that there shall be only one hearing of the objection.
    30. Counsel for the applicant did not offer any noteworthy submissions on the issue of abuse of process and we did not hear any argument that the statements in the cited Supreme Court judgements are wrong and should not be followed.
    31. It is our view therefore that an application under O11 r 25 and r 26 is not permitted in respect to a decision by a Judge in an application for leave to review taxation. We find the application as an improper use of the court process and this amounts to an abuse of process; Michael Wilson v Clement Kuburam (2016) SC1489 at [25] per Gavara-Nanu J.

CONSIDERATION

17. Notwithstanding the terms of the letter dated 30 April 2025, Investra seeks its application for leave to review dismissed by Cannings J to be revisited. The application before Cannings J was not of the type listed in s 10(1) of the Supreme Court Act.
    
18. The terms of s 10(1)(a) and (b) of the Supreme Court Act are plain. They relate only to an application for leave to appeal, or an application to extend the time within a notice of appeal or application for leave to appeal may be given. Order 11, rule 27 of the Rules is essentially an enabling provision for s 10 of the Supreme Court Act, and does not broaden it.
    
19. Section 10(2) of the Supreme Court Act must be read in conjunction with the limitations in s 10(1) of that Act.
    
20. We are particularly fortified in respect of this view by the decision of the Chief Justice in Tulin. However, we also consider our decision to be consistent with the decision of Hartshorn J in Raitano, to the extent that his Honour at [5] found that s 10 of the Supreme Court Act does not confer jurisdiction upon the Supreme Court or a Judge of the Supreme Court in respect of a review pursuant to s. 155(2)(b) Constitution. Further, the recent decision of the Supreme Court majority in Porgera, whilst dealing with different provisions of the Supreme Court Rules, nonetheless supports a finding that a decision of a Judge of the Supreme Court refusing leave for judicial review cannot be revisited by a further hearing pursuant to s 10 of the Supreme Court Act.
    
21. Mr Mawa for Investrar urged the Court to consider the interests of justice and the need for cases to be determined on their merits, and submitted that the reference in s 10 of the Supreme Court Act to “leave to appeal” should be interpreted to include “leave for judicial review”. While we appreciate the points made by Mr Mawa, we also consider there is a very strong public policy inherent in the finality of litigation, and the desirability of reading legislation according to its terms. As the Bench pointed out during submissions, the procedure for appealing decisions of a Judge of the National Court falls within Order 7 of the Supreme Court Rules, and is distinguishable from an application for leave to review a National Court decision (which in this case was made by Investrar pursuant to s 155(2)(b) of the Constitution and Order 5 rule 1 of the Supreme Court Rules).
    
22. We are satisfied that Investrar cannot competently rely on s 10 of the Supreme Court Act to seek rehearing of the leave for judicial review application already heard and determined by a Judge of the Supreme Court.
    
23. There is no specific application before the Court for the decision of Cannings J to be revisited, other than the request in the letter of 30^th April 2025 pursuant to Order 11 Rule 27 of the Supreme Court Rules. We are satisfied that it is incompetent and the proceedings in SCAPP No. 28 of 2025 should be dismissed. The costs of Westpac Bank (PNG) Limited (which was the only active respondent), of and incidental to the proceedings, should be paid by the applicant Investrar on a party-party basis, to be taxed if not otherwise agreed.
    

THE COURT ORDERS THAT:

1. The proceedings SCAPP No. 28 of 2025 be dismissed.
2. Investra Limited pay the costs of Westpac Bank (PNG) Limited of and incidental to the proceedings on a party-party basis, to be taxed if not otherwise agreed.

________________________________________________________________
Lawyers for the applicants: Jeffersons Lawyers
Lawyers for the first respondent: Bradshaw Lawyers