Marano v Noari [2013] PGSC 63; SC1307 (19 December 2013)

SC1307

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR REV. 44 OF 2009

IN THE MATTER OF AN APPLICATION FOR REVIEW UNDER S 155 (2) (B) OF THE CONSTITUTION

Between:

LUKE MARANO
Applicant

And:

JACK NOUARI
First Respondent

And:

ROBERT IGARA as Chief Secretary to Government
Second Respondent

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Injia, CJ
2013: 19th December

JUDICIAL REVIEW – Leave to seek review – Exercise of discretion – Principles – Application of principles to facts – Application Refused – Constitution, s 155 (2)(b); Supreme Court Rules 2012, O 5 rr 1, 2 & 3.

Counsel:

Applicant in person
Ms Bate, for the Respondents

19th December, 2013

1. INJIA, CJ: This is an application for leave to apply for review of a decision of the National Court sitting in Lae made on 30 April 2009 to dismiss the applicant's claim. The applicant failed to appeal, hence this application. Parties made oral and written submissions on the matter and I reserved my decision which I now deliver. My consideration and determination of the matters argued are embodied in my reasons for decision.

2. The applicant is a former civil servant. On 27 November 1995, his services were terminated. In 1997 he was reinstated following a Court ruling. In 1999, he was retrenched from the civil service. On 9 July 1999, he entered into a Deed of Release for the payment of his service entitlement under which he was paid K48,016.67. He was unhappy with the payment. He brought an action against the State for damages to recover pre-retrenchment service entitlements and post retrenchment entitlements. The court entered default judgment in his favor. The matter proceeded to trial on assessment of damages. At the trial, lawyer for the State appeared and contested the damages. The lawyer produced in Court copies of the Deed of Release. On 6 November 2007, the Court completed the hearing adjourned for decision on a date to be advised. On 30 April 2009, the trial judge delivered his decision. Only the lawyer for the respondent was in attendance to receive judgment. The decision did not reach the applicant until 30 June 2010 by which the 40 days allowed for appealing had expired. In the judgment, the trial judge refused to award damages. The trial judge gave two reason for the decision. First with regard to the pre-retrenchment claim, the applicant should not be paid because he did not earn his pay. Secondly, with regard to post retrenchment benefits, the Deed of Release was binding on him. On 14 October 2009, the applicant filed this application. On 2 May 2013, I heard the leave application and reserved my decision which I now deliver.

3. The application is made under O 5 rr 1 & 3 of the Supreme Court Rules 2012 (SCR
These rules are in the following terms:

" Division 1. Form of review application

1. An application to the court under Constitution Section 155(2)(b) lies with leave only, or without leave. Where the application lies with leave only the provisions of Order 7 Division 2 shall be followed, substituting the word "applicant" for the word appellant" and the word "application" for the word "appeal".
   
2. .................
   
3. An application for leave for review shall be made before a Judge".
   

4. The principles governing exercise of discretion to be applied in determining leave for review are those enunciated by the Supreme Court in Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120. I quote the pertinent parts of the joint judgment of the majority in that case comprising Justice Gavara-Nanu and Justice Yagi, as follows:

"Leave

2. For the applicant to be granted leave it must satisfy the following criteria:-

(i) Whether there was a delay by the applicant in making the application, if so whether there are exceptional circumstances showing manifestation of substantial injustice or whether the case is of such special gravity warranting the grant of leave;

(ii) The grant of leave is in the interest of justice; and

(iii) That there are clear arguable issues warranting leave to review the decision.

3. (In) regard to the issue of delay it has to be considered subjectively to matters raised by the other criteria for leave. The Court has wide discretion when considering delay, thus, even if the Court finds that there is delay, if the applicant can satisfy all or any of the criteria for leave, the Court can in the exercise of its discretion still grant leave: Avia Aihi v. The State (No. 2) [1982] PNGLR 44"

5. The majority found that the delay by 2 years in bringing the application was found to be unreasonable and unsatisfactory. Notwithstanding those findings, the majority found that grave injustice would occur if the decision was not reviewed in the circumstances of the case. The majority said:

"9.Except for the issue of delay, the applicant has in our opinion satisfied the other three criteria stated above for the grant of leave. In our opinion the interest of justice merits a review, given that if the application is dismissed at leave stage on the basis of delay alone, there will be substantial injustice to the applicant, the decision will have serious and grave consequences for the applicant. The manner in which the applicant obtained the title to the property is a serious legal issue which ought to be properly and fully determined on merit. All these matters in our respectful opinion merit review. As we alluded to earlier, the issue of delay has to be considered subjectively and in our opinion the Court would not be exercising its discretion properly and judicially if application is dismissed on the basis of delay alone."

6. Similar pronouncements are to be found in earlier cases on applications for leave for review: New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522. In that case, the Court emphasized that the paramount consideration was whether there were cogent and convincing reasons that demonstrate substantial miscarriage of justice such that in the interest of justice, leave ought be granted.

7. The principles developed in these cases find their source in judicial pronouncements in many cases commencing with Avia Aihi (No 2) [1982] PNGLR 44 and expounded in subsequent cases including Danny Sunu v The State [1984] PNGLR 305, The State v Colbert [1988] PNGLR 138, Joseph Kupo v Steven Raphael (2004) SC751 & Application of Herman Leahy (2006) SC 855.

8. More recently, in The State v Toka Enterprises Ltd (2013) SC1266, I added two further criteria. I said:

" First, the question of the applicant's standing or locus standi to make the application becomes relevant to be determined. In a situation where the applicant is a party in the proceedings in the Court below, the question of standing does not arise. The question will arise if the applicant is not a party in the proceedings in the court below. The test is whether the applicant is directly affected by the decision of the Court below such that he or she has sufficient interest in the subject matter of the application: see Kitogara Holdings v NCDIC [1988] PNGLR 346.

Secondly, an applicant must offer a satisfactory explanation for failing to appeal the decision. That explanation coupled with the explanation for the delay in bringing the application for leave should be considered together when the Court is considering the question of delay."

9. In summary, the criteria for grant or refusal of leave for review under s155 (2)(b) of the Constitution, are as follows:

(1) Locus standi;
(2) Satisfactory explanation for default in bringing appeal;
(3) Satisfactory explanation for delay in bring application for leave for

Review;

(4) Exceptional circumstances showing manifestation of substantial injustice; or serious legal or factual issues that raise an arguable case for a full review of the decision; and
(5) Interest of justice

10. In considering matters under any of those criteria, the Court is not determining the merits of those points. The Court should determine whether those points raise an arguable case for review based on a quick perusal of the material placed before it. That does mean to say that the Court should avoid determining points that clearly lack merit. It defeats the purpose of a leave application if points which clearly lack legal merit are disposed of at the leave stage if leave were granted to advance points that clearly lack merit or without clear legal substance.

Locus standi

11. The applicant is a party in the proceedings in the court below. The question of standing does not arise.

Satisfactory explanation for default in bringing appeal within time

12. The applicant has offered a satisfactory explanation. His explanation is contained in his affidavit. The explanation has not been countered by evidence from the respondents. I am satisfied with the applicant's explanation for failing to appeal within time, the reason being that he received the judgment after the appeal period had expired.

Satisfactory explanation for delay in bring application for leave for review

13. The application for leave was filed more than two months after the judgment was received. The applicant took time to consider the judgment and consider his options. The delay has been satisfactorily explained.

Exceptional circumstances showing manifestation of substantial injustice; or serious legal or factual issues that raise important and an arguable case for a full review of the decision:

14. Upon considering the arguments of counsel supporting their respective cases and the material placed before me, I consider the main point in contention to be whether the Deed of Release was binding. The pre-retrenchment and post retrenchment service entitlements appear to have been covered by the terms of the Deed of Release which indemnified the respondents' liability from all and any claims arising from his employment service with the respondent. In his Re-Amended Statement of Claim filed 24 July 2002, the applicant made no mention of the Deed of Release and the payment he received under that deed.

15. The applicant contends there occurred some procedural irregularities in the manner in which the trial judge allowed the lawyer for the State to appear at the trial on damages and received evidence on the Deed of Release and heard the State when default judgment had been entered. The argument is that the Deed should have been properly raised in a Defence. The Deed was not open to be raised in the trial on damages.

16. The principle is settled that a grant of default judgment does not entitle a plaintiff to seek the damages he claims; he must prove it. Further even when default judgment on liability is entered, the Court has a discretion to award damages, according to law. The Court has a discretion to award or refuse damages. The Court may refuse to award damages where there is no reasonable cause of action or the default judgment cannot be sustained in law: Lina Kewakali v The State (2011) SC1091. In a case where a Deed of Release has been executed, in law, the plaintiff is estopped from bringing an action in respect of those same matters.

17. In the present case although the trial judge did not make express reference to the case law on point, the discretion he exercised when the Deed of Release was brought to his attention appears to be a proper exercise of discretion. As a matter of law, the judge was entitled to receive and consider the Deed of Release as it concerned the applicant's legal right to claim damages in the form of service entitlements.

18. The applicant argued that the terms of the Deed of Release did not cover the claim for damages. However, upon a close perusal of the term of the Deed in question, the term is wide enough to exonerate the respondent from liability over any claims associated with the applicant's service conditions; both pre retrenchment and post retrenchment included.

19. His retrenchment occurred as a result of staff restructure exercise carried out under law and the question of service entitlements were settled by a Deed which is binding on the parties to the deed. There is some suggestion by the applicant that he was coerced into signing the Deed, however, I agree with the trial judge that the applicant is a lawyer and he knew what he was doing.

20. The applicant argues that there was undue delay in delivering the judgment contrary to Judicial Policy on Reserved Judgments to deliver judgment within 3-6 months and when it was delivered he was not notified of the date. In my view he has a point here about timely dispensation of justice but his point does not detract from his legal right to seek damages outside the terms of the Deed.

21. On the whole I agree with counsel for the respondent that, clearly, the matters raised in the application do not show exceptional circumstances or cogent and convincing reasons that raise an arguable case that justice was miscarried.

Interests of justice

22. For the reasons given above the interest of justice demands that a full review of the decision is not warranted.

Conclusion

23. Notwithstanding the findings made in favour of the applicant under the first, second and third criteria, the findings with regard to the fourth and fifth criteria being of paramount concern, leave to review must be declined.

24. For the foregoing reasons, I issue orders in the following terms:

(1) The application is refused.
(2) Each party shall pay their own costs of the proceedings.

_________________________________

Applicant in person
Solicitor General: Lawyer for the Respondents