Review Pursuant to Constitution Section 155(2)(b) and 155(4); TST Holdings Pty Ltd and Tin Siew Tan v Tom Pelis and Pelton Investments Pty Limited [1977] PGSC 1; SC534 (27 November 1977)

Unreported Supreme Court Decisions

SC534

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SC REV NO. 35 OF 1996
REVIEW PURSUANT TO SECTION 155(2)(B) AND 155(4) OF THE CONSTITUTION
BETWEEN: T S T HOLDINGS PTY LTD
FIRST APPLICANT
AND: TIN SIEW TAN
SECOND APPLICANT
AND: TOM PELIS
FIRST RESPONDENT
AND: PELTON INVESTMENTS PTY LIMITED
SECOND RESPONDENT

Waigani

Amet CJ Kapi DCJ Los J
27 November 1977

CONSTITUTIONAL REVIEW – s 155(4) – Application to review decision of Supreme Court – No jurisdictional authority.

CONSTITUTIONAL REVIEW – s 155(2)(b) – Application to review National Court decision – Supreme Appeal struck out for want of prosecution.

Right to invoke discretionary jurisdiction affirmed – Leave may be granted on convincing reasons and satisfactory explanations being given for non-compliance with statutory requirements and demonstration of an arguable case on the merits.

Counsel

G Shepperd, for the Respondents.

J F Aisa, for the Applicant.

AMET CJ KAPI DCJ LOS J: This is an application, purportedly made pursuant to Constitution s.155 (2) and (4), seeking to review an earlier decision of the Supreme Court, made on 12 July, 1996 and the earlier related National Court decision made in March 1995.

The National Court decision of March 1995 was appealed against by the applicants TST Holdings Pty Limited and Tim Siew Tan. That appeal was dismissed for want of Prosecution, by the Supreme Court on 12 July 1996.

This application, firstly purportedly pursuant to Constitution s.155 (4), seeks a review of the Supreme Court decision on the following grounds:

I. The Supreme Court decision was made in want or excess of jurisdiction, there was an error on the face of the record and or the decision was unreasonable under the Wednesbury Principles because:

1. The applicant for the dismissal did not disclose any proper grounds upon which the jurisdiction of the Court to exercise its discretion to strike out for want of prosecution was enlivened.

2. The discretion to strike out the applicant’s appeal was not exercised judicially in accordance with the principles applicable to the exercise of such discretion.

3. The Court took into account irrelevant matters in arriving at its decision.

4. The Court failed to take into account relevant matters in arriving at its decision.

5. The majority’s decision in all the circumstances was unreasonable.

The application seeks the order that the decision of 12 July 1996 be vacated and in substitution thereof it be ordered that the respondents application to strike out the appeal for want of prosecution be dismissed with costs.

Section 155(4) is in the following terms:

“Both the Supreme Court and the National Court 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.”

This application raises directly the issue as to whether the Supreme Court has jurisdictional authority to review its own earlier decision in the same matter, either by the same panel of justices or a differently constituted panel of justices.

The basis on which the application for review was made pursuant to s.155 (4) is reliance upon Constitution s.41. It was submitted that the decision of the Supreme Court was ‘an unlawful act’, on the grounds pleaded, within the meaning of s.41 and so an application for review of that decision could be brought under s.155 (4), because no specific machinery provision existed under the constitution for an action under s.41.

Inferentially, it was contended that, because the appeal was dismissed for want of prosecution pursuant to the Supreme Court Act, the right of review pursuant to the Constitution s.155 was still available to be invoked, as distinct from the right of appeal under the Act.

The first issue in this application therefore is whether the Supreme Court can review it’s own earlier decision, in the same matter, pursuant to s.155(4), where that earlier decision was made pursuant to an appeal under the Supreme Court Act, and that decision was dispositive of the appeal.

The appeal was dismissed for want of prosecution, pursuant to the Rules of the Supreme Court. That, in our opinion is the end of that appeal. It is a final decision and not merely an interlocutory one that could be restored in any way.

Similar issue was raised in Application By Wili Kili Goiya - SC Review No. 4 of 1990, Unreported Supreme Court judgement SC 408. The applicant was convicted by the National Court for wilful murder and sentenced to life imprisonment. He appealed against both the conviction and sentence and the Supreme Court dismissed the appeal against conviction but allowed the appeal in respect of sentence and imposed 20 years in hard labour. The applicant applied for review of the Supreme Court decision pursuant s.155(2) (a) and s.155(4).

The Supreme Court ruled that where an appeal is decided by the Supreme Court, there is no further right of appeal under s.155(2) (a) of the Constitution. The Court also held that the Supreme Court cannot review a decision of a differently constituted Supreme Court under s.155(4) of the Constitution.

In Isidore Kaseng v. Rabbie Namaliu and the Independent State of Papua New Guinea (No 2), O.S. No. 1 of 1995 dated 31 October 1995, similar issue was considered. The applicant was unsuccessful in his application before the Supreme Court seeking declaration that the Constitutional Amendment and the Organic Law were invalidly and unconstitutionally enacted. Not being satisfied with the Supreme Court Ruling, the Applicant filed further application, purportedly pursuant to Schedule 2.9(1) of the Constitution, seeking a review by the Supreme Court of that earlier ruling. Schedule 2.9(1) states that:

“All decisions of law by the Supreme Court are binding on all other courts, but not on itself”.

A five member Supreme Court considered that the issues raised in this application was analogous to the application for review in Wili Kili Goiya - S C 408 and applied the decision in that case. The Court held that the application of Isidore Kaseng was incompetent and an abuse of the process of the Court. It was held that ‘Sch. 2.9(1) does not confer any rights in an unsuccessful applicant or appellant before another Supreme Court to seek review of that Supreme Court decision before another Supreme Court, differently constituted, constituted by the same members or constituted by a large number of judges. Furthermore, Schedule 2.9(1) does not confer any power of review on the Supreme Court to review its own decision in an earlier case involving the same parties and the same issues’.

The position therefore, in our view, is now established in this jurisdiction that, where a case has been finally disposed of by the Supreme Court, then the Supreme Court, however constituted, has no jurisdictional authority to review that decision.

This application, seeking to invoke s.155 (4), on the grounds of an unlawful act under s.41 of the Constitution, is in our opinion misconceived and without merit. It has no jurisdictional basis and is therefore dismissed.

The alternative application is for a review of the National Court decision, pursuant to s.155 (2)(b) on the following basis, amongst others:

1. The applicants have been deprived of their right of appeal from the National Court in circumstances in which:

(a) an extension of time in which to bring the appeal was granted pursuant to the Supreme Court Act ....

(b) the delay in prosecuting the appeal was largely due to administrative problems in the Court Registry;

(c) the respondents to this application did not display (or even allege) any prejudice.

2. The applicants will suffer grave injustice in that they were deprived of an appeal from a decision of the National Court ....

Similar application was made in the case of Application by Jeffrey Balakau in SCR 8 of 1996. The Supreme Court had ruled that the appeal by the applicant was filed out of time and therefore was incompetent and dismissed it. The applicant made application pursuant to s.155 (2)(b) seeking to invoke the inherent power of the Supreme Court to review the decision of the National Court.

The Court affirmed the decision in Avia Aihi v. The State [1981] PNGLR, 81, that s.155 (2)(b) invested the Supreme Court with an unfettered discretionary jurisdiction to hear an application to review the decision of the National Court despite the applicant having lost the statutory right to appeal or apply for leave to appeal. The Court in Avia Aihi held that this discretionary jurisdiction should only be exercised in exceptional circumstances; the onus being upon the applicant to persuade the court to exercise such discretion.

The Court in the application of Jeffrey Balakau held that “any person affected or aggrieved by the judicial decision of the National Court and lacking any statutory right of appeal may nevertheless make application to invoke the Supreme Court’s inherent and discretionary power to review, under s.155 (2)(b) of the Constitution. It was further held, however, that grant of leave may only be allowed where the applicant has advanced convincing reasons to satisfy the Court as to why leave should be granted in his favour. Satisfactory explanation must be given for non-compliance with statutory requirements and that an arguable case on the merits ought to be demonstrated.

In the application of Jeffrey Balakau, the Court concluded that no satisfactory explanation had been advanced for the delay or default in filing the appeal within time and so leave was denied.

In this application the Supreme Court dismissed the applicants appeal for want of prosecution. We are not satisfied that any new explanation has been advanced for not prosecuting the appeal diligently, than were presented to the Court in the earlier decision to dismiss for want of prosecution. Reasons advanced were considered and ruling made upon them in the earlier decision. They cannot amount to convincing reasons now.

Whilst we accept and uphold the right in such an applicant seeking to invoke this discretionary inherent jurisdiction, we are not satisfied that this is an appropriate case for the grant of leave to review the decision of the National Court. We should also indicate that where an applicant/appellant has exhausted the statutory right of appeal or review and has been unsuccessful or has had his case disposed of finally under that statutory regime, the application for review pursuant to s.155 (2)(b) would be very rarely successful.

In the end result the applications for review are dismissed with costs.

Lawyer for the Applicant: Maladinas Lawyers

Lawyer for the Respondent: Aisa & Associate Lawyers