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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REV. NO 19 OF 2022
SUPREME COURT REVIEW PURSUANT TO SECTION 155(2)(b) OF THE CONSTITUTION, APPLICATION BY
BETWEEN
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Applicant
AND
PAPUA NEW GUINEA DEFENCE FORCE
Second Applicant
AND
MAJOR GENERAL GILBERT TOROPO, in his capacity as the Commander, PAPUA NEW GUINEA DEFENCE FORCE
Third Applicant
AND
LT COL RODERICK NOYAMEFA in his capacity as the Commanding Officer, PAPUA NEW GUINEA DEFENCE FORCE SUPPORT BATTALION
Fourth Applicant
AND
MASON PINCH
Respondent
Waigani: Makail, Murray & Berrigan JJ
2022: 28th March & 13th April
SUPREME COURT REVIEW – Review against final judgment following ex parte trial – Explanation for non-appearance at trial – Lack of service of notice of trial – Denial of natural justice – Breach of civil trial process-Possible defence on merit – Constitution – Sections 59 & 155(2)(b)
SUPREME COURT REVIEW – Practice & Procedure – Grounds of review – Grounds raised new factual and legal issues not raised in National Court – Fresh evidence – Leave required to adduce fresh evidence and raise points of law – Requirement to plead decision of National Court sought to be reviewed – Constitution – Section 155(2)(b) – Supreme Court Act – Section 6(1)(a) – Supreme Court Rules – Order 7, rule 55(a)
PRACTICE & PROCEDURE – Civil proceedings – Originating summons – Requirement to file notice of intention to defend – Default in giving notice of intention to defend – Consequence of – National Court Rules – Order 4, rules 9 & 33(b)(i)
Cases Cited:
Abiari v. The State [1990] PNGLR 250
Avia Aihi v. The State [1981] PNGLR 81
Bank South Pacific Limited v. Gibson Nad (2010) SC1278
Ben Kairu v. The State (2005) SC782
John Peng v. The State [1982] PNGLR 331
James Pari v. The State [1993] PNGLR 173
Kumagai Gumi & Co Ltd v. National Provident Fund Board Trustees (2006) SC837
Paga Hill Development Company (PNG) Ltd v. Powes Parkop (2019) SC1877
Rawson Construction Ltd v. Department of Works (2005) SC777
Telikom PNG Limited v. ICCC (2008) SC906
The State v. Toka Enterprises Limited (2018) SC1746
William Chilen v. The State (2011) SC1099
Counsel:
Mr. R. Kepaya, for Applicants
No appearance, for Respondent
JUDGMENT
13th April, 2023
1. BY THE COURT: This is an application for review pursuant to Section 155(2)(b) of the Constitution.
Summary of Chronology of Events
2. Based on the affidavits in the review book, the chronology of events giving rise to the application for review are uncontested and may be summarised as follows:
Review of National Court Decision
3. According to the application for review the applicants are not seeking review of the ruling of the National Court of 22nd August 2022 which refused the motion seeking an order to set aside the judgment of 9th May 2022 but the final judgment of 9th May 2022.
Grounds of Review
4. At paragraph 4 of the application for review, the grounds of review are:
“(a) The Learned Trial Judge erred in law in failing to give the Appellants (Applicants) an opportunity to be heard on the 9th of May 2022 for trial thereby breaching the principles of natural justice.
(b) The Learned Trial Judge failed to satisfy herself that the Appellants (applicants) were given reasonable notice and opportunity to be heard on the 9th of May 2022.
(c) The Learned Trial Judge erred in law when it (sic) conducted a trial without the respondent’s Lawyers filing and serving the relevant notices under the Evidence Act s. 35.
(d) The Learned Trial Judge erred in law in hearing the respondent’s application pursuant to the Constitution s. 155(4) when it was actually a contract enforcement proceeding. The Constitution s. 155(4) provision is to be relied upon to protect the primary rights of parties in the absence of other relevant laws.
(e) The Learned Trial Judge erred in fact and law when it (sic) made a finding that the respondent had lawfully acquired the vehicle ZDZ 310 through the Board of Survey process when there was a lawful directive given that cancelled the board of survey process through a directive no. 12 of 2021.
(f) The Learned Trial Judge erred in fact and law when it (sic) found that the respondent was the lawful owners of the vehicle when the vehicle was requisitioned as an ambulance by the Chief of Defence Force, Major General Mark Goina pursuant to section 70 of the Defence Act 1974.
(g) The Learned Trial Judge granted erroneously granted (sic) orders for the respondent without following proper trial process.”
5. For the purposes of determining the issues taken up in these grounds, it is helpful that the grounds that bring up a common issue be considered together.
Grounds 4(a) & (b) – Denial of Natural Justice
6. These grounds bring up one common issue, that is, whether the respondent was obliged to notify or serve a notice of trial on the applicants. If so, the applicant’s contention that they were not given an opportunity to be heard, thus denied natural justice, should be upheld.
7. According to the uncontested facts, after the respondent served the originating summons on the applicants, by Order 4, rule 11 of the NCR the second, third and fourth applicants were required to file a notice of intention to defend within 30 days after service of the originating summons.
8. As to the first applicant, it will be observed that as the proceeding was commenced by originating summons and that Section 9(a)(i) of the Claims By and Against the State Act, 1996 refers to a “writ”, it is doubted if the limitation period of 60 days for the State to file a notice of intention to defend after service of the originating summons, applies. For the present purposes the limitation period of 30 days will apply to the State (first applicant).
9. In a case where a defendant has defaulted in giving a notice of intention to defend within 30 days after service of the originating summons, it will be necessary to consider the consequence of the default. Learned counsel for the applicants did not address this issue in his written and oral submissions, but strongly submits that notwithstanding the applicants’ default, by the respondent’s lawyers conduct in continuing to serve court documents and letters on the applicants, the respondent has accepted that the applicants must be notified of the progress of the matter including the date for trial.
10. Moreover, as the lawyers notified them of the first trial date of 6th May 2022, but the trial did not go ahead due to the unavailability of the presiding judge, the lawyers were obliged to inform them of the next trial date of 9th May 2022. According to learned counsel’s submissions, the applicants exercised the option to set aside the order of 9th May 2022 on the grounds that it was obtained ex parte but the presiding judge refused it. In refusing it, the presiding judge did not consider the merits of the motion and denied the applicants’ right to be heard.
11. There is no question that affording a party an opportunity to be heard is a fundamental principle of natural justice as enshrined in Section 59 of the Papua New Guinea National Constitution (Constitution”). Section 59 states:
“59. Principles of natural justice.
(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”
12. The National Court and Supreme Court have long since upheld this fundamental principle of law in their decisions to protect an aggrieved party from arbitrary decisions by judicial and quasi-judicial authorities. In Kumagai Gumi & Co Ltd v. National Provident Fund Board Trustees (2006) SC837 the Supreme Court held that the parties, in particular the appellant, was denied natural justice because they were not given the opportunity to address the evidence. The National Court’s failure to afford this right to the parties constituted a fundamental error of law.
13. That was a case where at the hearing before the National Court, parties agreed to make submissions on legal issues or points of law for ruling by the Court. Submissions on the facts and evidence in the affidavits were to follow the determination of the legal issues. The National Court, however, ruled on the legal issues as well as the evidence and ordered judgment in favour of the respondent.
14. In a subsequent case in Bank South Pacific Limited v. Gibson Nad (2010) SC1278 the Supreme Court adopted the rational in Kumagai Gumi case (supra). That was a case where after the conclusion of the evidence at the trial, the parties agreed, and the Court directed that written submissions be filed by both parties and that the matter return before the Court on a date fixed for the parties to present oral submissions. A further hearing did not take place. Instead, the trial judge’s associate collected the written submissions from both counsel and brought them to the judge who proceeded to consider them and subsequently delivered a brief oral judgment in favour of the respondent.
15. At [21] of the judgment, the Supreme Court held:
“We agree with and accept the submission by the appellant that a fundamental error of law has been occasioned in this case where the parties and in particular the appellant's right to make oral submissions was denied when the trial judge failed to afford an opportunity to the parties to make oral submissions. The failure, in our view, constitute a fundamental procedural irregularity and therefore occasioned a substantial miscarriage of justice: Charles Bongapa Ombusu v The State (No. 1) [1996]PNGLR 335 SC496”.
16. While it is accepted that a breach of the principle of natural justice will constitute a fundamental procedural irregularity and result in substantial miscarriage of justice, each case must be decided on its own facts. This case is distinguishable from the Kumagai Gumi case (supra) and Bank South Pacific Ltd v. Nad case (supra) because the facts are different. In those cases, the parties were denied their right to make submissions at a further hearing.
17. In this case, despite being the recipient of court documents and notices, the applicants failed to explain if they were ready for trial and attend the pre-trial hearings. In addition, the National Court did not direct parties to file and serve written submissions and adjourned the matter to a date for further hearing of oral submissions. As the facts of those cases are different to this case, they are not relevant to deciding this review.
18, Turning to the question of the consequence of default in giving notice of intention to defend, the submission of learned counsel overlooks the importance of the requirement to give a notice of intention to defend proceedings in a civil case. Order 4, rule 9 of the NCR provides for the requirement of giving notice of intention to defend. The originating summons reinforces the requirement to give notice of intention to defend within 30 days after its service.
19. Parts of the originating summons reads as follows:
“You are liable to suffer judgment or an order against you unless the prescribed form of intention to defend this claim is received in the Registry within 30 days after service of this summons upon you.
If there is no attendance before the Court by your or your Lawyers at the time and place specified below, the proceedings may be heard, and you will be liable to suffer Judgment or an order against you in your absence.
Before any attendance at that time, you must give notice of your intention to defend this claim.”
20. Where a defendant defaults in giving a notice of intention to defend, it is liable to suffer judgment or an order against it. As to how a judgment or order may be entered against a defaulting defendant, Order 4, rule 33(b)(i) of the NCR provides that:
“The Court may proceed with a hearing in the absence of —
(a) a plaintiff, where he has had due notice of the hearing; or
(b) a defendant, where —
(i) he is in default of giving a notice of intention to defend; or
(ii) he has had due notice of the hearing”. (Underlining added).
21. Order 4, Rule 33(b)(i) is appliable because the applicants defaulted in giving a notice of intention to defend. As they defaulted in giving a notice of intention to defend, and irrespective of the respondent not notifying them of the new trial date, it was open to the National Court to proceed with the trial on 9th May 2022. Furthermore, it may be that the respondent’s lawyers continued to serve court documents and letters on the applicants, but the respondent was under no obligation to notify them of the trial date. Their claim is without legal foundation and contrary to Order 4, rule 33(b)(i).
22. In fact, the applicants owe an explanation for the default in giving notice under Order 4, rule 9. They have not provided an explanation to show the steps they took to defend the proceedings such as filing and serving of affidavits in response, contacting the respondent’s lawyers and/or making inquiries at the Court Registry to ascertain the dates for directions hearing and pre-trial conference including the trial date and to attend them.
23. In addition, a perusal of the appeal book reveals that the applicants did not file any affidavits in response to the respondent’s claim and yet they claim that they were denied natural justice. Their failure to explain all these matters does not justify their claim that the National Court denied them an opportunity to be heard and thus, denied natural justice.
24. These grounds lacked merit and are dismissed.
Grounds 4(c) & (g) – Procedural Breach of Civil Trial Process
25. The applicants are also aggrieved by the decision because they claim that the presiding judge did not follow the trial process in a civil case. They seek to appeal the decision in grounds 4(c) & (g) of the notice of appeal. However, these grounds are not clearly expressed to identify the issue. Vaguely, they bring up one common issue of whether justice was miscarried because the civil trial process was not observed by the presiding judge.
26. The applicants refer to two procedural aspects of a civil trial process to demonstrate that they have been breached and constituted a procedural breach of the civil trial process. First, the originating summons was progressed at a fast pace resulting in no directions hearing and pre-trial conference being held for the applicants to attend and participate.
27. Secondly, the respondent failed to give notice to rely on affidavits they intended to rely on at trial pursuant to Section 35 of the Evidence Act. Consequently, the applicants were not aware of the affidavits the respondent relied on at the trial.
28. To understand how the trial was conducted, it is necessary to consider the practice and procedure of civil proceedings in the NCR. As the proceedings in the National Court was commenced by originating summons, the starting point is Order 4, rule 3(2) (a) & (b). Essentially, litigating a dispute by an originating summons is appropriate for cases where the sole or principal question at issue is, or likely to be one of construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law or where there is unlikely to be a substantial dispute of fact.
29. Where the facts are not in substantial dispute and the issues are purely legal or points of law, unless it is ordered otherwise (Order 4, rule 35-Continuation on pleadings), parties are not required to engage in lengthy pleadings. In fact, an originating summons is arguably one of the quickest forms of civil litigation because it does not require parties to engage in lengthy pleadings.
30. In this case, the dispute before the National Court was about the ownership of the motor vehicle. The motor vehicle was the property of the second applicant. The respondent claimed that by a decision of the BOS, the motor vehicle was allocated to him. As the applicants did not participate and tender any evidence at trial to refute the claim, the issue was one of whether the decision of the BOS should be upheld, and the applicants be ordered to comply with it. The facts and issues presented did not require parties to engage in lengthy pleadings to identify the issue for determination. This explains why the pre-trial hearings and the trial were brief and quick.
31. After close of pleadings (which did not apply in this case), the next stage of the civil proceeding is the pre-trial hearings. After a matter is set down for trial, Order 10, rule 9A (8) provides for a directions hearing to take place and where the Court shall consider giving orders and directions to get the matter ready for trial. Following directions hearing, according to Order 10, rule 9A(9), a pre-trial conference shall be held to confirm if all the directions given by the Court have been complied with and if so, fix a date for trial. Finally, according to Order 10, rule 9A (12), once the matter is fixed for trial, the Registrar shall issue to the parties, a notice of trial.
32. Except for Mr Fehi’s attendance at the Waigani National Court on 6th May 2022 in response to the notice of trial that was served on the fourth applicant, the applicants did not explain why they did not attend directions hearings and pre-trial conference and file affidavits in response to the claim. Their failure does not justify their claim that the originating summons was progressed at a fast pace and in breach of the pre-trial hearing process as outlined above.
33. Similarly, they cannot rely on the lack of service of notice under Section 35 of the Evidence Act to claim that the National Court failed to observe the civil trial process because if they did not give a notice of intention to defend, the respondent was under no obligation to serve it on them: Order 4, rules 9 & 33(b)(i) of the NCR.
34. Finally, as to the conduct of the trial, it begins with the plaintiff’s opening statement about the case and the evidence to be adduced. Where the trial is by affidavit, it follows with the identification and tender of affidavits. Where the trial is by oral evidence, it follows with the identification and calling of the witness. At the end of all evidence, the plaintiff will close its case. Where the claim is undefended because of lack of appearance by the defendant, if prepared, the plaintiff may proceed with final submissions. Judgment may be delivered thereafter or on a date to be fixed by the Court.
35. In the present case, it will be noted from the transcript of the hearing of 9th May 2022 at pages 127 to 129 of the appeal book that in addition to introduction of counsel, the relevant parts in relation to the opening of the case, identification and tender of affidavits are cited hereunder:
“MR KUMBU: Whilst at the bar table, may I mention matter number 31 on your Honour’s list this afternoon, OS 38 of 2021 Mason Pinch v. Colonel Roderick and Others. Your Honour, in that matter I put in appearance for the plaintiff. For the court’s record, counsel’s name is Kumbu. What returns today is the substantive hearing. Your Honour, this has been a one sided affair since the originating summons was filed, process service, documents served and defendants have failed to appear. We have a short submission which we seek leave to tender.
HER HONOUR: Yes.
MR KUMBU: The notice of hearing today was served on the defendants and that is confirmed by the affidavit of service of David Isaiah filed 5 May 2022, document number 9 on the court file. If the court pleases, I would (sic) proceed with the submissions.
HER HONOUR: Yes.
MR KUMBU: Thank you. The plaintiff is a lance corporal attached with the transport platoon of the PNG defence force. On 20 March 2020 the plaintiff expressed his interest to purchase a vehicle described as a Toyota Land-cruiser 10 seater ZDF 310, belonging to the Taurama health centre of the PNG defence force. Following the normal tender and bid process, the first defendant approved the transfer of the vehicle to the plaintiff on 29 April 2020 after discharging or formally writing off the vehicle from the defence force. The plaintiff then registered the vehicle under his own name on 13 October 2021 and the registration number became BGC 493. All these facts are derived from his affidavit in support filed on 10 November 2021 which document is number 3 on the court file........”.
36. Based on the above transcript, the Court is satisfied that the respondent is entitled to open his case in the manner as he did, and Mr Kumbu referred the presiding judge to the affidavit he will be relying on. This was the affidavit in support of the respondent filed 10th November 2021 which was served together with the originating summons on the applicants on 12th and 15th November 2021 at their respective offices. As there was no appearance by the applicants, submissions followed suit and the National Court relied on this affidavit to hold that the respondent made an offer, and the BOS accepted it and allocated the motor vehicle to him. Subsequently, the motor vehicle was removed from him and returned to the second applicant.
37. Based on the foregoing reasons, the Court is not satisfied that the process adopted by the presiding judge was improper and that it was in breach of the civil trial process. If the applicants missed out on the trial, it was their own doing. Justice was not miscarried, and these grounds are dismissed.
Grounds 4(d), (e) & (f) – Possible Defences
38. Similarly, although not clearly expressed, these grounds bring up one common issue, that is, whether the respondent had established the claim for the motor vehicle on the balance of probabilities.
39. The applicants rely on three grounds to have the decision set aside. First, the National Court erroneously upheld the respondent’s submission that the claim for the return of the motor vehicle was based on Section 155(4) of the Constitution. It was not. It was an action for breach of contract.
40. Secondly, the decision of the BOS was revoked by the subsequent directive of the third applicant of 13th May 2021 to cease any sale of motor vehicles.
41. Thirdly, the third applicant exercised his power to “requisition” the motor vehicle under Section 70 of the Defence Act. Section 70 states:
“70. Requisitioning.
(1) The owner or person in possession or control of any vehicle, vessel, aircraft, aircraft material, animal or goods required for military purposes shall, when required by a prescribed member of the Defence Force, make it available for such purposes.
(2) Compensation is payable in the prescribed manner by the State for any loss sustained by a person by reason of the exercise of the powers conferred by Subsection (1).
(3) For the purposes of the effective exercise of the powers conferred by Subsection (1), the regulations may make provision in respect of the registration of the nature, description and situation of all or any vehicles, vessels, aircraft, aircraft material, animals or goods”.
42. These grounds bring up a possible defence to the claim against the applicants. First, it is arguable that by invoking Section 155(4) of the Constitution to enforce the decision of the BOS, the respondent erroneously relied on a wrong cause of action. Secondly, the decision of the BOS was revoked by the subsequent directive of the third defendant of 13th May 2021. Finally, it is arguable that regardless of the decision of the BOS, the third applicant’s successor had exercised his authority conferred under Section 70 of the Defence Act to “requisitioned” the motor vehicle.
43. However, the difference between relying on each ground as a possible defence in this application for review and the trial in the National Court is that, as the applicants did not attend trial, they did not tender affidavits or give oral evidence to establish these grounds to oppose the claim. Consequently, the National Court did not have the relevant evidence in the form of the affidavit in support of Major General Mark Goina and submissions on these possible defences and did not hold if they applied. On the other hand, in the absence of these possible defences, it was left with the uncontroverted evidence of the respondent and entered judgment against the applicants. Where the evidence of the respondent is uncontroverted, this Court is satisfied that it was open to the National Court to hold that the respondent had established the claim for the motor vehicle on the balance of probabilities.
44. The next question is, how do the applicants inform this Court that they have these possible defences and intend to rely on them in the National Court? It is imperative that the applicants must satisfy two requirements to rely on these grounds. These are:
(a) In order to rely on the affidavit of Major General Mark Goina filed 10th June 2022 the applicants were under an obligation to apply for leave to adduce (rely) on this affidavit as fresh evidence pursuant to Section 6 of the Supreme Court Act; and
(b) In order for the applicants to rely on these possible defences, they were under an obligation to apply and obtain leave of the Supreme Court to rely on them.
45. As to the first requirement, as the applicants did not participate at the trial, there was no affidavit, for example, affidavit in support of Major General Mark Goina before the National Court. It was after the judgment of 9th May 2022 and at the time of filing the applicants’ motion to set aside the judgment of 9th May 2022 that they filed the affidavit in support of Major General Mark Goina of 10th June 2022.
46. According to this affidavit, Major General Mark Goina asserts two significant factual matters. First, he refers to a memo by his predecessor the third applicant dated 13th May 2022 which directed the BOS to cease any sale of motor vehicles. Secondly, Major General Mark Goina ordered that the motor vehicle be “requisitioned” by exercising the power conferred on him by Section 70 of the Defence Act. These factual matters were not put before the National Court to consider and thus, it was unaware of them.
47. Applications to the Supreme Court to receive fresh evidence are made pursuant to s.6(1)(a) of the Supreme Court Act and Order 7 Division 20 of the Supreme Court Rules. Order 7, Rule 55(a) of the Rules states that an application to introduce fresh evidence is to be made by notice stating the nature of the evidence sought to be called, supported by an affidavit stating the grounds of the application. No such application was made. Furthermore, the material is not fresh evidence, that is relevant and material evidence which the party applying could have led at the trial or hearing, which has come to light since the trial or hearing, or evidence which has come to the knowledge of the party applying since the hearing or trial which could not by reasonable means have come to his knowledge before that time: John Peng v. The State [1982] PNGLR 331, Abiari v. The State [1990] PNGLR 250, James Pari v. The State [1993] PNGLR 173, Rawson Construction Ltd v. Department of Works (2005) SC777 and Ben Kairu v. The State (2005) SC782; William Chilen v. The State (2011) SC1099, and others. For obvious reasons the material was available to the applicants at the time of the trial if they had taken reasonable means to obtain it.
48. In reinforcing the requirement for leave to adduce fresh evidence in the Supreme Court, the Supreme Court in Paga Hill Development Company (PNG) Ltd v. Powes Parkop (2019) SC1877 at [13] and [14] stated:
“13. Any documents not adduced and tendered into evidence during trial of the matter are essentially matters not before the trial court and therefore, this Court will not allow such material to be introduced before it. Even if the appellant now wishes to introduce this new evidence, there are proper procedural processes available which the appellant has not invoked. There is no proper application filed by the appellant to introduce fresh evidence.
14. More relevant to this appeal is the material document (affidavit of Mr. Edwin Gesi of service of s 5 notice sworn on 29 March 2013 and filed on 30 April 2013), which the appellant relied upon as a ground of appeal. This document we find was not introduced during trial. It also did not form part of the evidence during trial. Given these matters, we find the grounds of appeal incompetent and an abuse of the process of the Court”. (Underlining added).
49. As to the second requirement, there appears to be no hard and fast rule against an appellant (or applicant in an application for review) to rely on a new ground of appeal (or review) at the hearing in the Supreme Court. The caveat against this practice is the requirement to obtain leave of the Supreme Court because the appellant (or applicant) will be relying on a ground that was not taken up in the National Court. In considering whether to consider a new point not taken up before the National Court, the Supreme Court in Telikom PNG Limited v. ICCC (2008) SC906 observed that:
“151. Secondly, the point about the Appeals Panel not acting as a judicial tribunal was not raised before the primary Judge. That does not mean that Telikom was necessarily prevented from raising it in the Supreme Court. But even if it was included as a ground of appeal in the beginning, they required leave of the Supreme Court to argue it. Telikom has not sought leave to argue the point. This issue was discussed in the Papua Club case, in which the Court departed from the approach taken in Fly River Provincial Government v Pioneer Health Services Limited (2003) SC705 (where the Court held that the appellant cannot raise points of law not raised in the National Court) and followed the approach it took in Van Der Kreek v Van Der Kreek [1979] PNGLR 185 and the approach of the High Court of Australia in Dianne McGrath Fingleton v The Queen [2005] HCA 34 (there is no blanket prohibition against allowing parties to raise new points at an appeal; it is a matter for the discretion of the court but the party seeking to agitate the new point must establish special or exceptional circumstances to warrant its determination). So, in addition to asking for leave to amend the ground of appeal, Telikom should have sought leave to argue the point of law that was not put before the primary Judge.”
50. The possible defences also raise points of law because first, consideration will be given to the type of cause of action to bring to seek the relief sought by the respondent. Secondly, whether the third applicant had authority to revoke a decision of the BOS and finally, whether Section 70 of the Defence Act conferred power on the third applicant’s successor (Major General Mark Goina) to “requisitioned” the motor vehicle. These points were not taken up at the trial in the National Court and, no leave was sought and obtained by the applicants to take them up before this Court.
51. As the applicants did not attend to these requirements, they failed to correctly engage the review jurisdiction of the Supreme Court to take up and ventilate these possible defences before this Court and these grounds will be disregarded.
52. The applicants’ misapprehension of how to bring these possible defences to the notice of this Court is compounded by their failure to plead the ruling of 22nd August 2022 in the application for review. For it is trite law that the review jurisdiction of the Supreme Court will be correctly engaged when the decision of the National Court sought to be impugned is pleaded in the application for review. In this case, the applicants did not plead the ruling of 22nd August 2022 in the application for review.
53. Despite this, the hearing progressed as if it was a review against the ruling of 22nd August 2022 because their counsel made strong submissions at [18] to [20] of the written submissions to have this Court set aside this ruling. To illustrate the course taken by the applicants, the following is extracted from the written submissions:
“18. The matter came for hearing before Acting Judge Wurr on Monday the 22nd of August 2022. The appellants submissions at the lower Court was for the lower court to set aside the ex parte Orders and for (sic) Court to rehear the matter with all parties present. The appellants relied on the affidavits filed together with the old motions in the same terms filed on the 10th of June 2022.
54. The Court further notes at [28] of the written submissions:
“The appellants were not made aware of the hearing date of the 9th of May 2023 (sic) [RB 84 P9 & 10] [RB 93-94]. However, the Court made substantive Orders on that date. The respondent’s attempted to set aside those substantive orders as they were entered ex parte, however the Court erroneously exercised its discretion and refused to set side those ex parte Orders [RB – 130 – 138]. The Court refused to set aside those Orders despite it having the powers to dispense with the strict requirements of the rules and did not address the merits of the application.”
55. The Court further notes that by this ruling the National Court refused the applicants’ motion to set aside the final judgment of 9th May 2022. The ruling was the result of the applicants’ motion to seek an order to set aside the final judgment of 9th May 2022. One of the grounds the applicants relied on was, that these possible defences show that they had a defence on merit. As the applicants did not seek to review the ruling of 22nd August 2022, they have not correctly engaged the review jurisdiction of this Court and these grounds will be disregarded.
Conclusion
56. An application for review under Section 155(2)(b) of the Constitution will be upheld if it in the interest of justice, that there are cogent and convincing reasons and exceptional circumstances that show some substantial injustice is manifest or the case is of special gravity and that there are clear grounds meriting a review of the decision: Avia Aihi v. The State [1981] PNGLR 81 and The State v. Toka Enterprises Limited (2018) SC1746.
57. In the present case, none of the grounds established that it is in the interest of justice that application for review should be upheld, or that there are cogent and convincing reasons and exceptional circumstances that show some substantial injustice is manifest, or the case is of special gravity and that there are clear grounds meriting a review of the decision such that the application for review should be upheld: Avia Aihi v. The State (supra) and The State v. Toka Enterprises Limited (supra).
58. As to costs, as there was no appearance by the respondent at the hearing of the review, each party will be ordered to pay their own costs of the application for review.
Order
59. The formal terms of the final order are:
1. The application for review is dismissed.
________________________________________________________________
Solicitor General: Lawyers for Applicants
Gibson Bon Lawyers: Lawyers for Respondent
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