Tulin v Toyota Tsusho (PNG) Ltd (trading as Ela Motors) [2019] PGSC 116; SC1882 (2 December 2019)

SC1882

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV 12 of 2019

REVIEW PURSUANT TO CONSTITUTION SECTION 155 (2) (b) IN THE APPLICATION BY THOMAS TULIN
Applicant

AND:
TOYOTA TSUSHO (PNG) LIMITED trading as ELA MOTORS
Respondent

Waigani: Salika CJ
2019: 20^th & 29^th November, 2^nd December

SUPREME COURT REVIEW - application for leave to review – applicant invokes section 10 of Supreme Court Act to enable full court of supreme court to invoke the powers under s155 (2)(b) Constitution - jurisdiction under s. 155 (2) (b) is not and cannot be exercised or invoked under s. 10 (2) of the Supreme Court Act - jurisdiction under s. 10 (2) of Supreme Court Act is for appeals only – application refused

Counsel:

Mr R Lains, for the Applicant
Mr W Mininga, for the Respondent

2^nd December, 2019

1. SALIKA CJ: Background Facts: The applicant entered into a contract with the Respondent to purchase two new five door Toyota Land Cruiser vehicles. He paid for the two vehicles but the vehicles were never delivered and he said, as a result of the non delivery of the vehicles, he suffered loss and claimed damages.

2. The matter went to trial at the National Court and the Court held that the applicant was not entitled to the relief he sought and dismissed the claim.

3. The applicant appealed the decision to the Supreme Court and the Court upheld the applicant’s appeal and remitted the matter back to the National Court to assess damages.

4. The Supreme Court stated that the applicant was entitled to damages for the lost opportunity to make a profit, as distinct from loss of income from the lease of the vehicles.

5. The National Court heard the trial for assessment of damages and ruled that the applicant was not entitled to damages for loss of income and that the applicant failed to prove loss of income.

6. In the end result, the National Court refused to award any damages on 19 November 2018.

7. The applicant aggrieved by this decision did not file another appeal against that National Court decision within the 40 days required for him to file an appeal.

8. He instead filed this application for leave for judicial review on 28 February 2019. He sought to invoke the jurisdiction of the Supreme Court under s. 155 (2) (b) of the Constitution.

9. On 8 May 2019, the application for leave was heard by a single judge of the Supreme Court and dismissed it.

10. On 21 May 2019, the matter was listed before me for directions hearing and I asked why the matter was before me as the application for leave had been heard and refused. At this hearing, the Respondent’s lawyers submitted that the leave application had been heard by a single Supreme Court Judge and dismissed and that, that was the end of the matter and I agreed with his submissions and dismissed the matter as being an abuse of the process as the jurisdiction under s 155 (2) (b) is for the Supreme Court to review all acts of the National Court. In this case, a single judge of the Supreme Court had heard and decided the issue and that it would be an abuse of the powers under s. 155 (2) (b) of the Constitution.

11. On 7 June 2019, the applicant filed an application for leave to file a slip rule application with respect to my decision of 21 May 2019.

12. Those are the factual circumstances in this matter.

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.

15. Section 10 (2) 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.”
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.
    
19. Whether a single judge of the Supreme Court has jurisdiction to hear a leave application under s. 155 (2) (b), is an issue that should be revisited. This is because earlier decisions of the Supreme Court held that the inherent jurisdiction under s.155 (2) (b) of the Constitution was specifically granted to the Supreme Court and that there was no provision either in the Constitution or any other law which stipulate that this jurisdiction may be exercised by a single judge of the Supreme Court. See Viviso Seravo and the Electoral Commission v. John Giheno,15 January 1988 by Kapi DCJ (as he then was).
    
20. The Supreme Court in Review Pursuant to S 155 (2) (b) of Constitution, Application by Anderson Agiru and Public Prosecutor, Kapi DCJ (as he was then), Salika J (as he then was) and Sakora J, held that it was an abuse of process where an applicant exercised the right not to appeal upon legal advice and instead filed a judicial review application under s. 155 (2) (b) of the Constitution.
    
21. The same Court relevantly said:
    

“The powers of the Supreme Court may be exercised by three (3) judges (s. 161 (2) of the Constitution). The powers of the Supreme Court may be exercised by a single judge if such power is given by an Act of Parliament or the Supreme Court Rules under s. 162 (2) of the Constitution which provides:

“(2). In such cases as provided for by or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.”

So far as appeals are concerned, a single judge of the Supreme Court may exercise powers set out under Supreme Court Act, ss 5 and 10. However, there is no equivalent provision as far as a review under s. 155 (2) (b) is concerned. The provisions of Supreme Court Act are not applicable to judicial review under s. 155 (2) (b).

It follows from this that a single judge of the Supreme Court has no power to make any orders under s. 155 (2) (b) of the Constitution. This position has been made clear in a series of Supreme Court decisions. Kapi DCJ examined this question in Viviso Seravo & Electoral Commission v John Giheno (Unreported Judgment of the Supreme Court dated 15^th January 1998, SC539).”

22. The Supreme Court Rules were amended in 2002 allowing for leave for review applications in Election Petition matters to be heard separately from the substantive review applications which, before then, were heard together. See Jurvie v Oveyara [2008] PGSC 22; SC935 (3 September 2008).

23. In relation to other matters, the Supreme Court Rules of 2012, Order 5 Rules 1, 2 and 3 enabled separate applications for determination on the question of leave. Order 5 Rules 1, 2 and 3 provides:

“ORDER 5—REVIEW OF NATIONAL COURT

Division 1.—General Review

Sub-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. An application for leave by a prisoner who is not legally aided may be made in form 2 to Schedule Two.

3. An application for leave for review shall be made before a Judge.”
24. With respect only Rule 1 makes provision for leave applications where leave applications under s. 155 (2) (b) are sought. It refers to the provisions of Order 7 Division 2 to be followed substituting the relevant words to invoke the jurisdiction.

25. With respect that approach appears to me to be a piecemeal one. A more elaborate and proper provisions ought to have been promulgated as to how the s. 155 (2) (b) jurisdiction was to be invoked. What Order 5 Rules 1, 2 and 3 appears, in my view, with respect, to do is require the jurisdiction under s 155 (2) (b) to be in the same basket as where one seeks leave for review in other ordinary appeals. I note the decision of the single Supreme Court judge in the State v Dadi Toka Enterprises Ltd (2013) SC1346.

26. With respect, the earlier decisions referred to including the decision of the Supreme Court in Avia Aihi v The State (No. 2) (1982) PNGLR 44 suggested that s. 155 (2) (b) jurisdiction is special and that, under that jurisdiction that question of “interests of justice” may be the only criteria where it may be invoked.

27. In Lae Bottling Industries Ltd v Lae Rental Houses Ltd (2011) SC1120, the Supreme Court appears to bring in other considerations together with the consideration of “interests of justice” such as exceptional circumstances and arguable case when invoking the Supreme Court’s jurisdiction under s. 155 (2) (b) of the Constitution. The decision of the State v. Dadi Toka (2008) SC1346 also appears to bring in other considerations than the “interest of justice” consideration.

28. The jurisdiction under s. 155 (2) (b) of the Constitution is a review jurisdiction and not an appeal jurisdiction.

29. The questions:

1. Is Section 10 (2) of the Supreme Court Actavailable to an applicant seeking to invoke the jurisdiction of the Supreme Court under s. 155 (2) (b) of the Constitution. I answer the question in the negative.
   
2. Are the provisions of Order 5 Rules 1, 2 and 3 of the Supreme Court Rules appropriate and adequate in the present form for applicants seeking to invoke the jurisdiction of the Supreme Court under s. 155 (2) (b) of the Constitution. I say they are inadequate, inappropriate and fall short of properly addressing the processes and procedures to take.
   

30. In the meantime, I note that in Election Petition cases, leave applications under s.155 (2) (b) of Constitution are permitted to be heard by a single Supreme Court judge pursuant to the Supreme Court Rules. I also note that leave application under s. 155 (2) (b) in criminal matters are heard by the full Court of the Supreme Court. I further note that leave applications under s.155 (2) (b) of the Constitution in civil matters are being heard by single Supreme Court judges. With respect, whether leave applications in civil cases which seek leave to invoke s.155 (2) (b) jurisdiction should be determined by a single judge of the Supreme Court should be revisited by the full Supreme Court.

31. In this matter, I have decided that s. 10 (2) of the Supreme Court Act is not applicable to this application or even direction hearings.

32. The application in this matter is refused.
____________________________________________________________
Hardy and Stocks Lawyers: Lawyers for the Applicant
Bradshaw Lawyers: Lawyers for the Respondent