Motor Vehicles Insurance Ltd v Opeta [2020] PGSC 45; SC1954 (10 February 2020)

SC1954

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV 81 OF 2018

BETWEEN:
MOTOR VEHICLES INSURANCE
LIMITED
Applicant

AND:
FURA OPETA
Respondent

Waigani: Hartshorn J,
2019: 17^th September
2020: 10^th February

SUPREME COURT – Review - Application for leave to apply for review pursuant to s.155(2)(b) Constitution – principles of law on application for leave for review considered -it has not been shown and is not in the interests of justice that leave to review be granted - application for leave for review dismissed.

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. J.S. Langah, for the Applicant
Mr. J.F. Unua, for the Respondent
10^th February 2020

1. HARTSHORN J: This is a decision on a contested application for leave to review a decision of the National Court (Decision) pursuant to s. 155(2)(b) Constitution. The Decision was delivered on 29^th May 2018. 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.

2. 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.
3. 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."

4. The Decision amongst others, entered judgment for the respondent Mr. Fura Opeta against the applicant, the Motor Vehicles Insurance Trust (MVIL) for general damages in the sum of K34,000.00, and interest for 9 years in the sum of K24,480.00. Mr. Opeta had sought damages for injuries he claimed to have suffered in a motor vehicle accident that occurred on 19th September 2003.

Preliminary

5. Mr. Opeta raises the preliminary issue that this application has been commenced with an incorrect form. He submits that Form 5 is required to have been used and not Form 5A, as in this instance. I reject this submission. As Injia CJ (as he then was) said in SHPG v. Kalu (supra) at [3]:

"An application for leave for judicial review resembles the form of an application for leave to appeal with appropriate modification: see O5 r1. The leave application in the present case complies with that form. It correctly seeks leave to review the judgment based on errors allegedly committed by the trial court; ...."

6. This statement equally applies to this case.

Consideration

7. 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 MVIL is that it sent a letter on 23rd June 2018 by email to its lawyers instructing them to appeal. The evidence given on behalf of the lawyers for MVIL is that they did not receive that letter until 9th July 2018. The last day for filing an appeal was in fact Monday 9th July 2018. One of the lawyers for MVIL deposes that the reason he received the letter of 23rd June 2018, 13 days after it was sent was, ".... due to a technical problem in transmitting the emails very late." There is no other evidence of this apart from this statement.

8. In my view a reasonable explanation for not filing an appeal in time has not been given. The lawyers for MVIL had informed MVIL of the adverse National Court decision and that it had until 9th July 2018 to file an appeal. MVIL deposes that it gave the instruction to appeal between 23rd -26th June 2018. The lawyers for MVIL depose that they did not receive the instruction until 9th July 2018. To my mind, prudence and good practice dictates that when the lawyers for MVIL had not received an instruction concerning whether to appeal from between 30th June to 3rd July 2018, they would have contacted MVIL to ascertain whether its instructions were to appeal. Similarly, MVIL should have contacted its lawyers to ensure that they had received its instructions to appeal. There is no evidence of either of these actions being taken by its lawyers or MVIL. This lack of evidence, together with the other evidence given on behalf of MVIL, renders the explanation given for not filing the appeal in time unreasonable.

9. 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. It was filed two months 29 days after the expiry of the 40 day period within which an appeal could have been filed. To my mind, a period of about three months from the expiry of the period within which an appeal could have been filed is a period of time that requires a reasonable explanation to be given. Three months is more than twice the statutory appeal period of 40 days. No explanation has been given on behalf of MVIL for this period of time taken for the application for leave to be filed.

10. Having found that a reasonable explanation for not filing an appeal within time has not been given and that no explanation has been given for the period of time taken for the leave application to be filed, 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. In considering the merits of the case sought to be argued by MVIL, from a quick perusal of the proposed grounds of the review there appears to merit in the arguments that there was insufficient admissible evidence before the court to enable the primary judge to enter liability in favour of the respondent and to make the award of damages.

12. MVIL submits that the primary judge fell into error in law or in fact, that there are serious issues to be tried and that as the appeal period of 40 days has lapsed an application under s. 155(2)(b) Constitution is the only avenue available to MVIL. It is not submitted on behalf MVIL, correctly in my view, that exceptional circumstances exist. Further, that s. 155(2)(b) Constitution is the only avenue available to MVIL as it did not appeal in time, does not ipso facto, mean that MVIL is entitled to be granted leave to review pursuant to s. 155(2)(b) Constitution.

13. Following a consideration of the documentation before the court and the submissions made I am not satisfied that in this instance 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.

14. 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

15. It is ordered that:

a) This application for leave to review is dismissed;

b) The applicant shall pay the respondent's costs of and incidental to the said application to be taxed if not otherwise agreed.
_________________________________________________________________
Manase & Co: Lawyers for the Applicant
Public Solicitor: Lawyers for the Respondent