Tay v Gerau [2011] PGSC 10; SC1097 (7 March 2011)

SC1097

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCR 3 OF 2010

REVIEW PURSUANT TO SECTION
155 (2) (b) CONSTITUTION

BETWEEN:

ALPHONSE TAY, CHIEF EXECUTIVE OFFICER PORT MORESBY GENERAL HOSPITAL
Applicant

AND:

NEWCOMBE GERAU
Respondent

Waigani: Davani, Gabi and Hartshorn JJ
2011: March 4th and 7th

Application for leave to review under s. 155 (2) (b) Constitution – delay in filing application for review – interests of justice

Facts:

The applicant seeks leave to review a National Court decision (Decision) pursuant to s. 155 (2) (b) Constitution. The Decision was delivered on 17th August 2006. Leave is required as the right of appeal was not exercised in the time permitted by statute.

Held:

1. The 3criteria which must be satisfied for leave to be granted are:
   

a) that it is in the interests of justice to grant leave;

b) there are cogent and convincing reasons and exceptional circumstances, eg. some substantial injustice is manifest or the case is of special gravity;

c) there are clear legal grounds meriting a review of the decision.

2. As there has been significant delay in filing the application for leave and there has not been any explanation for the delay, it is not in the interest of justice that leave be granted. The applicant has failed to meet all 3 mandatory requirements for leave. The application for leave is refused.

Cases

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
Zachery Gelu v. Michael T Somare (2009) N3647

Counsel:

Mr. T. Cooper, for the Applicant
Messrs. S. Soi and D. Dusava, for the Respondent

7th March, 2011

1. BY THE COURT: The applicant seeks leave to review a National Court decision (Decision) pursuant to s. 155 (2) (b) Constitution. The Decision was delivered on 17th August 2006. Leave is required as the right of appeal was not exercised in the time permitted by statute: Avia Aihi v. The State (No. 2) [1982] PNGLR 44, Application by Anderson Agiru (2002) SC686, Application by Herman Leahy (2006) SC855.

2. Where a right of appeal has not been exercised, 3 criteria must be satisfied before leave can be granted (we refer to the cases cited above). These are:

a) it is in the interests of justice to grant leave;

b) there are cogent and convincing reasons and exceptional circumstances, eg. some substantial injustice is manifest or the case is of special gravity;

c) there are clear legal grounds meriting a review of the decision.

3. The Decision is a determination upon an application for judicial review of a decision terminating the respondent's employment. No appeal was filed in the 40 days period permitted by statute. It was not until 3 years 5 months after the Decision was delivered, that this review proceeding was filed. That is more than 31 statutory periods of time during which an appeal must be filed. In addition, there is no explanation given for this delay. Indeed, counsel for the applicant had to be prompted into addressing the court on this question and later conceded that lawyers for the applicant had contributed to the delay.

4. It is clearly not in the interests of justice that an applicant be allowed to review a judicial decision after such a lengthy period of time. This Court in Application by John Maddison and Bank of South Pacific Ltd (2009) SC984, in refusing to grant leave to review under s. 155 (2) (b) Constitution, considered a period of 9 months to be an inordinate and inexcusable delay. The delay in Maddison (supra) is insignificant in comparison with the delay in this case.

5. The Court said in Maddison (supra) that there is a public interest in the finality of litigation that requires consideration and that parties who are aggrieved by a judgment of the National Court have a duty to agitate their grievance promptly and with all due despatch. We respectfully agree and are of the view that these remarks are particularly apposite to the present case given that the Decision concerns a judicial review; (we refer to the observations in Zachery Gelu v. Michael T Somare (2009) N3647 as to the necessity and desirability of concluding judicial review proceedings promptly.)

6. As we are not satisfied that it is in the interests of justice that leave be granted, the applicant has failed to meet all 3 mandatory requirements for leave. Consequently, it is not necessary for us to consider the other submissions of counsel.

Orders

7. The orders of the Court are:

a) This proceeding is dismissed

b) The costs of the respondent of and incidental to this proceeding shall be paid by the applicant.

_________________________________________________
Rageau Manua & Kikira Lawyers: Lawyers for the Applicant
Soi & Associates: Lawyers for the Respondent