Lupai v Chief Executive Officer of Digicel (PNG) Ltd [2021] PGSC 104; SC2174 (24 November 2021)

SC2174

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 1 OF 2021

APPLICATION FOR LEAVE TO REVIEW PURSUANT TO s. 155(2)(b) CONSTITUTION AND ORDER 5 RULE 1 SUPREME COURT RULES

BETWEEN:
BALI LUPAI
Applicant

AND:
CHIEF EXECUTIVE OFFICER
OF DIGICEL (PNG) LIMITED
First Respondent

AND:
DIGICEL (PNG) LIMITED
Second Respondent

Waigani: Hartshorn J,
2021:18^th, 24^th November

SUPREME COURT REVIEW - 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 Kuglame v. Seka (2019) SC1816

Counsel

Mr. B. Lupai, the Applicant in Person
Mr. J. P. Munnell, for the Respondent

24^th February, 2021

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 20^th December 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.

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, according to the application, dismissed the National Court proceeding for being frivolous. The National Court proceeding appears to have been concerned with a demand for rental from the respondents for the operation of a communications tower on customary land. There is, however, nothing before this court concerning the National Court proceeding. The two booklets which were handed up by the applicant are amongst others, concerned with the applicant’s claim to the subject land, mediations, agreements and correspondence. The two booklets are not concerned with and do not have copies of documents relating to the National Court proceeding or the Decision or the reasons of the primary judge for the Decision. The Decision, reasons for the judgment, the originating process in the National Court and the transcript of the hearing which resulted in the Decision, are not in evidence. Notwithstanding this paucity of evidence concerning the National Court proceeding, I am only able to proceed and consider the matter on the evidence which is before me: Kuglame v. Seka (2019) SC1816.

Consideration

5. In determining whether there are cogent and convincing reasons, the first consideration is the reason for not filing an appeal within time. The only evidence on this is that, first, that the covid 19 pandemic made ‘everything difficult’ and second that the applicant had to return to Kagua to pursue the matter through the Mendi District Land Court as the primary judge had questioned whether the status of the subject customary land had been resolved.

6. As to the covid 19 reason, there is no evidence to the effect that the Supreme Court Registry was closed thus preventing the filing of an appeal. There also is no evidence as to how and why the applicant was prevented from filing an appeal within time. I am not satisfied that a reasonable explanation has been given in this regard.

7. As to the applicant having to pursue the matter through the Mendi District Land Court, this is not a reasonable explanation. An appeal from a judgment of the National Court is brought on the basis that the primary judge allegedly fell into error in making a decision on the evidence and material before the Court at that time. That the applicant pursued the matter further in the Mendi District Court after the Decision is irrelevant and was not necessary for the purposes of commencing and pursuing an appeal against the Decision.

8. 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 about ten months and 15 days after the expiry of the 40 day period within which an appeal should have been filed. To my mind, a period of about three months from the expiry of the period within which an appeal should 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. The period of time it took the applicant to file this application is over seven times the statutory appeal period. No explanation has been given on behalf of the applicant for this period of time taken for the application for leave to be filed. It is assumed that the same reasons which were given for not filing an appeal within time are relied upon for the delay in filing this application. I have already found these explanations are not reasonable.

9. Having found that reasonable explanations for not filing an appeal within time and for the delay in filing the application have not been given, 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.

10. From a perusal of the application, the applicant appears to contend that the primary judge made the Decision on technical grounds and not by considering the applicant’s main grievance. Further, the applicant has obtained a Local Land Court Order in Mendi on 1^st July 2020 in his favour, which he appears to contend, allows him to pursue the matter further in the Supreme Court.

11. First, as mentioned, the reasons of the primary judge for the Decision are not before me. I am therefore unable to determine whether the primary judge fell into error in his reasons for the Decision. Second, as for any reliance upon a court order of another court made after the Decision, as I have already made mention, an appeal and also a review, are against a judgment of a court based on what was before the court at the time and whether the court fell into error in its consideration of what was before it then. For the purposes of this application and a review, if leave to review is granted, the applicant is not able to rely upon a court order from another court which was pronounced after the Decision.

12. Following a consideration of the documentation before the court and the submissions made, I am not satisfied in this instance that it has been shown 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.

13. 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

14. It is ordered that:

a) This application for leave to review is dismissed;

b) The applicant shall pay the respondents costs of and incidental to the said application to be taxed if not otherwise agreed.
__________________________________________________________________
The Applicant In person
John Peter Munnell Lawyer: Lawyers for the Respondents