Review Pursuant to Constitution Section 155(2)(b); Application by Steven Mark [2008] PGSC 16; SC925 (12 August 2008)

SC 925

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW NO. 27 OF 2005

Review pursuant to Constitution section 155(2) (b)

Application by
STEVEN MARK

Mount Hagen: Kirriwom, Davani & Lay JJ
2007: 29th August
2008: 12th August

CONSTITUTION s155 (2)(b)-application for review - principles - whether applicant demonstrates exceptional circumstances, substantial injustice or special gravity.

CLAIMS BY AND AGAINST THE STATE ACT 1996 S5 - whether a Local Level Government is "the State".

Facts

The Applicant brought proceedings in the National Court for damages for wrongful suspension from his employment with a local level government. The proceedings were dismissed on the basis that no notice of intention to bring proceedings against the State as required by s5 of the Claims by against the State Act had been given by the Applicant. The Applicant was two days late to file a Notice of Appeal due to some communication breakdown between the Applicants lawyer and the lawyer's town agent, so brought an application for review pursuant to s155(2)(b) of the Constitution.

Held

1. 1. Failure of a lawyer to fulfil his obligation to the client to file a notice of appeal is not a ground justifying a grant of leave to review pursuant to Constitution s155(2)(b);
   

2. A Local Level Government is the State for the purposes of s5 of the Claims by Against the State Act;

2. 2. The application does not demonstrate exceptional circumstances, substantial injustice or special gravity to justify a grant of leave for review.
   

Cases Cited:
Paul Tohian, Minister for Police And Independent State of Papua New Guinea v Tau Liu (1998) SC566
Avia Aihi v The State [1981] PNGLR 81
Peter Dickson Donigi v Base Resources Ltd [1992] PNGLR 110
SCR No.1 of 1998; Reservation Pursuant to s. 15 of the Supreme Court Act (2001) SC672
Herman Gawi v PNG Ready Mixed Concrete (1983) unreported decision of Bredmeyer J.
Dillingham Corporation of New Guinea Pty Ltd v Constantino Alfredo Diaz [1975] 262
Application of Gabriel Dusava (1998) SC581

References:
Constitution
Claims by and Against the State Act
Underlying Law Act

Counsel
M. Tamutai, for the applicant
P. Kunai, for the Respondent

12 August, 2008

1. BY THE COURT: The applicant brought proceedings in the National Court (WS 76 of 2002) against the Respondent Mt Hagen Rural Local Level Government seeking redress for wrongful suspension of his employment and losses in the sum of K55,272.25.
   
2. At the commencement of the National Court trial the issue of whether a Section 5 notice under the Claims by against the State Act ("CBASA") was given by the applicant, was raised. Such a notice must be given in proceedings against the State before the writ is issued: Paul Tohian, Minister for Police And Independent State of Papua New Guinea v Tau Liu (1998) SC 566, Kapi DCJ, Sheehan and Jalina J. J.. The National Court found no such notice was given and on that basis dismissed the proceedings.
   
3. This is not an appeal from that decision, but an application for review pursuant to the Constitution Section 155 (2) (b) because the applicant was two days late to file an appeal. Leave to review a decision of the National Court is only granted, as was held by the Supreme Court in Avia Aihi v The State [1981] PNGLR 81, where the applicant can "... convince the court why (she) should have this discretion exercised in her favour to allow her leave..." (Kidu CJ at p88) and "... only in exceptional circumstances where some substantial injustice is manifest or the case is of special gravity", per Kearney DCJ at p 93, Andrew J. concurring at p102, Greville-Smith J.and Kapi J. (as he then was) dissenting.
   
4. The grounds of the application for review are:
   
   1. There are good reasons why the appeal was not filed within time;
   2. It is in the interests of justice that leave to review be granted;
   100. That notwithstanding the failure to filed within time, the grounds for review are cogent and convincing and the circumstances are exceptional;
   4. That there are clear legal grounds.
      
5. The first ground, that there are good reasons why the appeal was not filed within time, is based on affidavit material filed to the effect that there was some confusion over payment of the filing fee for the notice of appeal, between the applicant's lawyer and the lawyer's city agent and the failure of the lawyer to discover that this was delaying filing of the appeal, until it was too late.
   
6. In Peter Dickson Donigi v Base Resources Ltd (1992) PNGLR 110 the court said:
   

"For the purposes of this case, it can be stated that this case supports the proposition the negligence of a lawyer in failing to file a notice of appeal or failing to protect the right of appeal does not amount to an exceptional circumstance to warrant an exercise of jurisdiction to review. Secondly, notwithstanding that there has been a failure by the lawyer to protect the interest of the applicant, the Court should consider whether the merits of a review provide any cogent and convincing reasons and exceptional circumstances in favour of granting leave to review. These considerations may out weigh the failure to lodge the notice of appeal within time".

7. The first ground of the application can be shortly disposed of, the lawyer had a responsibility to file the appeal within the time-limited by Section 17 of the Supreme Court Act and did not do so. That does not amount to a competent ground to apply for review.
   
8. In respect of the remaining grounds the applicant's submission is that the National Court was wrong to apply the case of SCR No.1 of 1998; Reservation Pursuant to s. 15 of the Supreme Court Act (2001) SC 672. That five judge bench decision of the Supreme Court held that s13 of the Claims by and Against the State Act, in using the term "the State" included a reference to a Provincial Government, and obiter also a reference to local level government. By implication the same meaning is intended, where that term "the State" is used elsewhere in the CBASA, including s5.
   
9. The applicant's submission proceeds that the law is different with respect to a local level government, because a local level government is not now a "Government Body" as defined under Schedule 1.2 of the Constitution. The submission that a local level government is not a Government Body is argued in this way. Firstly, in the Constitution Schedule 1 .2 a Government Body is defined as:
   

(a) the National Government, or

(b) a provincial government, or

(c) an arm, department, agency or instrumentality of the National Government or a provincial government; or

(d) a body set up by statute or administrative act for governmental or official purposes;

10. It is submitted that prior to July 1995 a local level government was established by the Local Government Act Chapter 57, which was repealed in July 1995. Consequently before that date but not after that date, it is submitted a local level government was a Government Body by reason of the provisions of subparagraph (d) above. Since the repeal of the Local Government Act, a local level government has been established by the Organic Law on Provincial and Local Level Government.
    
11. The submission is that the Organic Law is not caught by the term "statute". "Statute" is a term defined by the Constitution Schedule 1.2 to mean:
    

"An Act of the Parliament, an Emergency Regulation or a provincial law, and includes a subordinate legislative enactment made under any such law"; and

"Act of the Parliament" means a law (other than a Constitutional Law...)

12. It does appear to be inescapable that the argument made by the applicant thus far is correct, an Organic Law is not a statute, and nothing in the definition of Government Body encompasses a local level government.
    
13. The next enquiry must be, is the fact that a local level government is not a Government Body as defined by the Constitution fatal to the application of SCR No.1 of 1998; Reservation Pursuant to s. 15 of the Supreme Court Act (2001) SC 672 to determine whether or not a local level government is part of the State referred to in s5 of the CBASA?
    
14. The first point that must be made about SCR No.1 of 1998; Reservation Pursuant to s. 15 of the Supreme Court Act (2001) SC 672 is that the question before the court was, is a Provincial Government part of the State referred to in the CBASA? Therefore, any comments made about local level governments in that decision were strictly obiter even though great respect and deference must be given to a unanimous five judge bench decision. "Decision of law" referred to in s19 of the Underlying Law Act (which provides that decisions of the Supreme Court are binding on the National Court ) must, in the tradition of our legal system, mean a decision which was necessary to dispose of the matter before the court: See the discussion of stare decisis in the case of Herman Gawi v PNG Ready Mixed Concrete (1983) unreported decision of Bredmeyer J., and in the decision of Frost CJ in Dillingham Corporation of New Guinea Pty Ltd v Constantino Alfredo Diaz [1975] 262 and the comments on stare decisis and obiter dicta in the judgment of Sakora J. in the Supreme Court case of Application of Gabriel Dusava (1998) SC 581. Therefore, while the National Court could treat the comments made by the Supreme Court in respect of local level government as persuasive, they were not binding.
    
15. What did the Court actually say in SCR No.1 of 1998; Reservation Pursuant to s. 15 of the Supreme Court Act [2001] SC 672? The following extracts from the judgment are relevant:
    

"A provincial government is thus at least a government body. Is it a part of the "State"? Is it part of the government body making up the "Independent State of Papua and New Guinea"? We believe it is..."

"A provincial government is established by the Constitution..."

"We agree generally with Injia J.'s opinion that the total government system includes National, Provincial and Local Level Governments. In our opinion there are in fact three levels of political governments intended: the National, Provincial and Local Level. All three are established by the Constitution. Each is constituted by elected representatives.

"... there is a high degree of National Government control..."

"Provincial governments also have limited financial autonomy..."

"The principal source of funding for Provincial Government and local level government's is the grants from the National Government through the National Budget...".

"The National Executive may: (a) withdraw all or any of the powers of; or (b) withdraw and withhold all or any finances to; or (c) withdraw all or any of the powers and functions of, and withdrawn withhold all or any of the finances to,

the provincial government..."

"In principle therefore the assets and funds administered by the Provincial Government, belong to the same people of Papua New Guinea that the Claims by and Against the State Act protects from execution. The term "State" therefore includes Provincial and Local Level Governments for the purposes of the Claims by against the State Act 1996".

16. There were therefore eight points, which the Supreme Court considered supported the conclusion that a Provincial Government is part of the "State" as that term is used in the CBASA. One of those points is that a Provincial Government is a Government Body within the meaning of the definition contained in the Constitution. That is not true with respect to Local Level Government.
    
17. All those points, other than being a government body as defined in the Constitution, still hold true for Local Level Governments. Local Level Government:
    
    • Is established by the Constitution: Constitution part VIA Sections 187A to 187J;
    • Is an elected government: Organic Law on Provincial and Local Level Government (" OLPLLG") s26;
    • Is established by proclamation by the Head of State acting on advice of the National Executive Council: OLPLLG s27(c);
    • Can be abolished with the consent of the National Executive Council and the Provincial Assembly: OLPLLG s28;
    • Members salaries and allowances are fixed by the Salaries and Remuneration Commission: OLPLLG s35;
    • The National Parliament may make laws in respect of areas of local level government responsibility, in some circumstances: OLPLLG s41;
    • Powers, functions and finances may be withdrawn by the National Executive Council in the same manner as a provincial government: OLPLLG s51;
    • May be suspended: Constitution s187E and OLPLLG s55;
    • Funding includes grants from the National Budget: OLPLLG s82 and subdivision D.
      
18. All these provisions show that Local Level Government is still part of the three tier system of elective government provided for by the Constitution, substantially funded by and supervised and controlled by the National Executive Council and a Local Level Government administers substantially the same funds administered by the National Government and protected by the CBASA. We therefore conclude that for the reasons advanced in SCR No.1 of 1998; Reservation Pursuant to s. 15 of the Supreme Court Act [2001] SC 672 a local level government is part of the "State" for the purposes of the CBASA.
    
19. It may be that on another occasion, in a different factual situation, for example, if it was demonstrated that the Attorney General or the Solicitor General would not take any action on receipt of notice of intention to proceed against a Local Level Government or that Local Level Governments have their own equivalent legislation to the CBASA and the general assets are thus protected against execution, the Court may take a different view from that formed by this Court on this application.
    
20. However, we are of the view that the Applicant's arguments do not demonstrate cogent and convincing reasons that the trial judge was wrong to apply SCR No.1 of 1998; Reservation Pursuant to s. 15 of the Supreme Court Act (2001) SC 672 to the circumstances of the case before him. Nor do we think that the Applicant has demonstrated that there has been some substantial injustice or that the case is of special gravity.
    
21. For these reasons we refuse leave to review the decision of the National Court.
    
22. Formal Orders:
    
    1. 1. The Application for review is refused;
    2. 2. The Applicant shall pay the respondent's costs of the application.
       

Tamutai Lawyers: Lawyer for the Applicant
Kunai & Co Lawyers: Lawyer for the Respondent