Igime v Motor Vehicle Insurance Ltd [2021] PGSC 37; SC2111 (4 May 2021)

SC2111

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO. 62 OF 2019

APPLICATION TO REVIEW PURSUANT TO SECTION 155 (2) (b) and SECTION 155 (4) OF THE CONSTITUTION

APPLICATION BY BONNY IGIME
Applicant

V

MOTOR VEHICLE INSURANCE LIMITED
Respondent

Waigani: Gavara-Nanu J, Kariko J, Miviri J
2021: 29^th April & 4^th May

PRACTICE & PROCEDURE – Application for review under Constitution, Section 155(2)(b) – Application to dismiss – Leave not sought – Abuse of Process

Facts

Having failed to appeal within the statutory time-limit against the decision of the National Court dismissing his claim, the plaintiff seeks a review of the decision pursuant to Section 155(2)(b) & Section 155(4) of the Constitution. The respondent applies to have the application for review dismissed for want of prosecution, and for being an abuse of process.

Held

(1) Leave of the court is first required for the application for review under Section 155(2)(b) of the Constitution.
(2) As no leave was first sought, the proceeding is an abuse of process, and it is dismissed with costs.

Cases Cited

Avia Aihi v The State (No.2) [1982] PNGLR 44
Michael Wilson v Clement Kuburam (2016) SC1489
Review Pursuant to Constitution Section 155(2)(b); Application by Herman Joseph Leahy (2006) SC855
Munziong v Seneka (2013) SC1291

Legislation

Constitution
Supreme Court Act 1975
Supreme Court Rules 2012

Counsel

B. Igime, applicant in person
E. Goina, for the Respondent

4^th May, 2021

1. BY THE COURT: The applicant Bonny Igime, filed an application pursuant to Section 155(2)(b) and Section 155(4) of the Constitution, seeking a review of the decision of the National Court made on 25^th October 2018 that dismissed his claim for damages in proceedings styled WS No. 1338 of 2017: Bonny Igime v Motor Vehicles Insurance Limited.

2. The respondent moves to have the application for review dismissed for want of prosecution, and for being an abuse of process.

Brief facts

3. In the National Court, Mr Igime sought damages in the form of compensation and bonus from Motor Vehicles Insurance Limited (MVIL), for his role while Chairman of the MVIL Board in recovering company funds from Woodlawn Capital in Australia.

4. Although aggrieved by the decision of the National Court in dismissing his claim, the plaintiff failed to appeal or seek an extension of time to appeal, within the forty days period allowed by Section 17 of the Supreme Court Act 1975.

5. Mr Igime filed the application for review after receiving advice that although he had lost his right to appeal, he could nevertheless file for a review pursuant to the Constitution.

Consideration

6. We first note that while Mr Igime cites both Section 155(2)(b) and Section 155(4) of the Constitution, the applicable provision is Section 155(2)(b).

7. It is settled law that a person who is aggrieved by the judicial decision of the National Court, and no longer has any statutory right to have that decision reviewed, may nevertheless make application to the Supreme Court to exercise its inherent and discretionary power to review that judicial decision under Section 155(2)(b) of the Constitution; Avia Aihi v The State (No.2) [1982] PNGLR 44.

8. An applicant for review under the Constitution may need to first obtain leave. Application for leave is a distinct and separate proceeding to the application for review. If leave is granted, the applicant may then file for the review. In Review Pursuant to Constitution Section 155(2)(b); Application by Herman Joseph Leahy (2006) SC855, the Supreme Court (Kapi CJ, Cannings J, David J) explained the relevant procedure as follows:

“15. The exercise of jurisdiction under Section 155(2)(b) is not automatic. Resolution of a case under Section 155(2)(b) consists of two distinct steps.

• first, the court decides whether it is necessary for the applicant to be given leave (ie permission) of the Supreme Court for the application to be heard and, if it is necessary, whether leave should be granted to the applicant;
• secondly – if leave is either not necessary or is granted – the court determines the substantive review.

16. If leave is necessary but is refused, the substantive review does not get determined.”

9. Where a party has lost its right to appeal like in the present case, it is necessary to first obtain leave of the Court before applying for a review. As Mr Igime has not applied for the requisite leave, it is an abuse of process of the court and the court lacks jurisdiction to hear the review; Munziong v Seneka (2013) SC1291 (Kandakasi J, Cannings J, Collier J). Improper use of the processes of the Court amounts to abuse of process; Michael Wilson v Clement Kuburam (2016) SC1489 at [25] per Gavara-Nanu J.

Conclusion

10. We therefore dismiss the proceeding pursuant to Order 13 Rule 16(1)(a) of the Supreme Court Rules 2012, with costs to the respondent.

11. In the circumstances, it is not necessary to consider the application to dismiss for want of prosecution.

Order

12. We order that:

(1) The respondent’s application to dismiss the proceeding is upheld.
(2) The proceeding is dismissed for being an abuse of process.
(3) The applicant shall pay the respondent’s costs, to be taxed if not agreed.
(4) Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.

________________________________________________________________
The applicant: In person
Dentons PNG: Lawyer for the Respondent