Rogakila v Sehazuha Land Group Incorporated [2020] PGSC 150; SC2058 (11 December 2020)

SC2058

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV 94 OF 2019

BETWEEN:
IRUNA ROGAKILA,
Registrar of Incorporated Land Groups
First Applicant

AND:
DEPARTMENT OF LANDS AND
PHYSICAL PLANNING
Second Applicant

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Applicant

AND:
SEHAZUHA LAND GROUP
INCORPORATED
Respondent

Waigani: Hartshorn J,
2020: 9^th, 11^th December

SUPREME COURT -practice and procedure - Application for leave to apply for review pursuant to s.155(2)(b) Constitution

Cases Cited:
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 Alphonse Tay v. Newcombe Gerau (2011) SC1097
Benjamin Sengi v. The State (2015) SC1425
Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568

Counsel:

Mr. R. Uware, for the Applicant

11^th December, 2020

1. HARTSHORN J: This is a decision on a contested application for leave to review a decision of the National Court pursuant to s. 155(2)(b) Constitution.

2. I was satisfied that the respondent/plaintiff had been served with the relevant documentation and had been advised of the hearing date and time of the application. Consequently, the application proceeded in the absence of representation on behalf of the respondent.

Background

3. The respondent/plaintiff Sehazuha Land Group Incorporated (SLGI) judicially reviewed amongst others the decision of the Registrar of Incorporated Land Groups, Mr. Iruna Rogakila (Registrar ILG) dated 10^th January 2018 to cancel the certificate of registration of SLGI.

4. The primary judge upheld the judicial review application and made certain orders on 14^th March 2019 (Decision). The Registrar ILG, the Department of Lands and Physical Planning and the State seeks to review the Decision on the proposed grounds that the trial of the judicial review application was held ex parte without the participation of the applicants’/defendants’ so they were not heard, the affidavit of the Registrar ILG was not considered by the primary judge, the applicants lawyer had suddenly become indisposed and was not able to attend the trial, the applicants’ file had gone missing at the time of the trial, a bad precedent will be set and law and order issues may be inflamed if leave is not granted.

Application for leave to review

5. Leave is required as the right of appeal was not exercised in the time permitted by statute: Order 5(1) Supreme Court Rules and 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; Alphonse Tay v. Newcombe Gerau (2011) SC1097 and Benjamin Sengi v. The State (2015) SC1425.

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

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

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

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

7. Recently in Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568, Injia CJ (as he then was) said at [5]:

"The criteria for grant of leave for review is settled in various decisions of this Court: Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120, State v Toka Enterprises Ltd (2013) SC1266, Luke Marano v Jack Nouari (2013) SC 1307. The applicant must have standing to bring the application. If the applicant is a party in the proceedings of the court below from which the judgment under review was given, the question of standing does not arise. The applicant must offer a reasonable explanation as to why an appeal against the judgment was not filed within time. The application for leave for review must not be delayed. If there has been a delay in lodging the application, a reasonable explanation must be given. The application must be prosecuted promptly. If there has been a delay in prosecuting the application, a reasonable explanation must be offered. If the court finds that there has been a delay and no reasonable explanation has been offered for the delay in lodging and prosecuting the application, the court may, nonetheless, grant leave for review if there are exceptional circumstances showing manifestation of substantial injustice that give rise to serious issues of facts or law that warrants a full review of the judgment. It is also necessary for the applicant to demonstrate that it is in the interest of justice to warrant a review of the judgment."

Consideration

8. In determining whether there are cogent and convincing reasons, the first consideration is the reason for not filing an appeal within time. The evidence given on behalf of the applicants is that the lawyer who had carriage of the matter, Ms. Tela, became seriously ill and did not have time to inform another lawyer with the Office of the Solicitor General of the status of this matter, that the current lawyer who now has carriage of the matter on behalf of the applicants was assigned the file after the trial, that the Registrar ILG was on duty travel and it took some time to obtain his instructions.

8. From a consideration of the evidence of Ms. Tela, Ms. Tela unfortunately became unwell on or about 4^th February 2019, was hospitalised and then travelled to Melbourne Australia on 12^th February 2019. Ms. Tela had carriage of the matter on behalf of and under the supervision of the Solicitor General. The Solicitor General or some other lawyer or lawyers in that office should, and to my mind would, have had notice of the position and incapacity of Ms. Tela and should have immediately taken over her files. The trial occurred a month after Ms. Tela became indisposed. The Decision was delivered the day after the trial. That an appeal was not filed in time cannot be blamed on Ms. Tela’s unavailability. The failure to have counsel to appear on behalf of the defendants’ at the trial and to file an appeal in time was because of inadequate or no supervision at the office of the Solicitor General. The explanation given by and on behalf of the applicants’ is not reasonable.

9. The further period of about seven months that elapsed before the application for leave to review was filed is also due to a lack of supervision and a failure to promptly take instructions. The Registrar ILG could have given instructions by email or could have returned from his travel. The explanation that the office file could not be located is not reasonable as this is a matter which is in the control of the Office of the Solicitor General. Further, the National Court file could have been accessed to assist in the preparation of an appeal.

10. From a consideration of the evidence to which I have referred, I am not satisfied that the explanation given for not filing this application until about nine months after the subject decision was delivered is reasonable. Having found that reasonable explanations have not been given for not filing an appeal within time and for the period of time taken in filing the application for leave as occurred in Kalu's case (supra), this court may nevertheless consider whether there, "are exceptional circumstances showing a manifestation of substantial injustice that gives rise to serious issues of fact or law that warrants a full review of a judgment": Kalu's case (supra) at [5]; and further, whether it is in the interests of justice that a review of the judgment is warranted.

11. I consider the merits of the case sought to be argued by the applicants. As to the first issue that the trial was held ex parte, the primary judge was entitled to proceed as he did. Ms. Talu deposes that the parties had agreed and the Court fixed the hearing date of 13^th March 2019. It is the fault of the Solicitor General or the lawyer who supervised Ms. Talu in not ensuring that another lawyer on behalf of the Solicitor General for the applicants, appeared for the trial on 13^th March 2019.

12. As to the affidavit of the Registrar ILG not being considered by the primary judge, there was no representation at the trial to enable the affidavit of the Registrar ILG to be tendered into evidence on behalf of the applicants. Again, that is the fault of the Solicitor General or the lawyer who supervised Ms. Talu in not ensuring that another lawyer on behalf of the Solicitor General for the applicants, appeared for the trial on 13^th March 2019. The primary judge did not fall into error.

13. A further matter, is that the Registrar ILG, under the Land Groups Incorporation Act, does not have the power to cancel a certificate of recognition as he purported to do. This was conceded by Mr. Uware, counsel for the applicants.

14. Consequently, for the above reasons, I am not satisfied that the applicants have made out that they have an arguable case. Further, exceptional circumstances have not been made out and the Supreme Courts determination on a new or novel point of law is not required.

15. Given the above, I am not satisfied that it is in the interests of justice that this application for leave to review should be granted.

Orders

16. It is ordered that:

a) This application for leave to review is dismissed;

b) No order as to costs.
__________________________________________________________________
Office of the Solicitor General: Lawyers for the Applicants