Isifu v Panguma [2020] PGSC 151; SC2059 (14 December 2020)

SC2059

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV 19 OF 2020

APPLICATION FOR REVIEW PURSUANT TO
SECTION 155(2)(b) OF THE CONSTITUTION

BETWEEN:
HON. KEVIN ISIFU, MP
Minister for Inter-Government Relations
First Applicant

AND:
DEPARTMENT OF INTER-GOVERNMENT RELATIONS
Second Applicant

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Applicant

AND:
HON. LUKE PANGUMA, MPA –
President of Hulia Rural Local-Level Government
First Respondent

AND:
HULIA RURAL LOCAL-LEVEL GOVERNMENT
Second Respondent

Waigani: Hartshorn J,
2020: 11^th & 14^th December

SUPREME COURT – practice and procedure - Application for leave to apply for a 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. L. Baida, for the Applicants

14^th December, 2020

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

2. I was satisfied that the respondents’ lawyers 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 respondents.

Background

3. The applicants seek to review an order of the National Court made on 25^th April 2019 which was made with the consent of the parties (consent order). The consent order is concerned amongst others, with the extension of the term of the Moran Local – Level Government Special Purposes Authority (Authority), for certain persons to be appointed as members of the Management Committee of the Authority and for the discontinuance of the proceeding

Application for leave to review

4. A party to the consent order was the first defendant, Hon. Kevin Isifu, the then Minister for Inter-Government Relations. The current Minister for Inter Government Relations, Hon. Pila Niningi, deposes that he is the first applicant in this application. He further deposes that amongst others, from certain records, that the Office of the Secretary of the Department of Inter Government Relations and his Office:

a) were not aware of the National Court proceeding in which the consent order was made;

b) did not formally instruct the lawyer from the Office of the Solicitor General to appear on behalf of the applicants;

c) did not formally instruct the Solicitor General to sign off on the proposed consent order sent by the lawyers for the respondents.

5. Further, Hon. Pila Niningi deposes that no due diligence was carried out by the Office of the Solicitor General prior to agreeing the terms of the proposed consent order, that the consent order was obtained through improper representation and that the consent order should be revisited with the aim of it being set aside.

Law

6. The consent order was made on 25^th April 2019. 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.

7. 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.
8. 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

9. In determining whether there are cogent and convincing reasons, the first consideration is the reason for not filing an appeal within time. There is no evidence concerning why an appeal was not filed in time and so no reasonable explanation has been given in this regard. The next consideration is whether there has been delay in filing the application for leave to review and if so, has a reasonable explanation for this been given.

10. This application for leave was filed over one and half years after the consent order was made. To put that period into perspective, that is more than 13 statutory periods of time during which an appeal must be filed. There is no evidence which attempts to explain this delay. This Court in Application by John Maddison and Bank of South Pacific Ltd (supra), 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.

11. Counsel submitted from the bar table that, “This was also due to the continuous change in government ministry portfolios where Ministers were constantly changing.” If indeed this is a reason for the delay, the delay is within the control of the Government and so is not a reasonable explanation.

12. 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.

13. In considering the merits of the case sought to be argued by the applicants: that a notice of appearance and notice of intention to defend were not filed, to my mind it is likely that the applicants are estopped from relying upon this proposed ground. It is based upon their lawyers alleged failures or errors in not filing these documents. The second proposed ground that the lawyer having carriage of the file did not have the requisite authority - there is difficulty with this proposed ground given that the Acting Solicitor General at the time, Mr. Tanuvasa, signed the consent order. I refer to s. 13(1) and (2) Attorney General’s Act in this regard. Further, there is no evidence from the Office of the Solicitor General or from persons at the Ministry or Department of Inter-Government Relations at the time of the consent order, in support of this proposed ground.

14. The third proposed ground, that the consent order contains relief not sought in the originating summons - this proposed ground is arguable but again, the consent order was signed by the Acting Solicitor General. Further, the evidence in support of the application is by the current Minister and is predominantly hearsay. As referred to, there is no evidence from the Office of the Solicitor General or the Solicitor General in support of this application.

15. I am not satisfied that it has been established that the applicants’ have what in the ordinary course, would be an arguable case likely to succeed. Further, following a consideration of the documentation before the court and the submissions made, I am not satisfied that in this instance, in the context of an application for leave to review, that there are any exceptional circumstances, or the specific exceptional circumstances as described by Injia CJ (as he then was) in Kalu's case (supra). This is not a test case and no particular circumstances exist which require this court's determination on a new or novel point of law.

16. I am also satisfied that it has not been shown to be and that it is not, in the interests of justice that leave to review be granted. Consequently, for the above reasons, this application is dismissed.

Orders

17. It is ordered that:

a) This application for leave to review is dismissed;

b) No order as to costs.
__________________________________________________________________
Nelson Lawyers: Lawyers for the Applicants
Kombri & Associates: Lawyers for the Respondents