Taku v Manning [2023] PGSC 45; SC2390 (10 February 2023)

SC2390

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 32 OF 2022

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

BETWEEN:
JONATHAN TAKU
Applicant

AND:
DAVID MANNING
in his capacity as Commissioner
for Police in Papua New Guinea
First Respondent

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.
2023: 8^th & 10^th February

SUPREME COURT REVIEW – practice and procedure - Application for leave to 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
Ganglau Landowner Co Ltd v. Medaing (2020) SC1963
Elizabeth Kavi v. ANZ (2020) SC1951
Motor Vehicles Insurance Ltd v. Fura Opeta (2020) SC1954

Counsel:

Mr. L. Giyomwanauri, for the Applicant

10^th February, 2023

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

Background

2. The applicant seeks to review a decision of the National Court made on 18^th August 2022 (Decision). The Decision dismissed the applicant’s application for leave to judicially review the decision to dismiss him from the Police Force.

Law

3. 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; Motor Vehicles Insurance Ltd v. Fura Opeta (2020) SC1954

4. 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.
5. 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

6. In determining whether there are cogent and convincing reasons, the first consideration is the reason for not filing an appeal within time. The explanation for the delay in filing an appeal in time given by the applicant in evidence is that the applicant applied for legal aid assistance from the Office of the Public Solicitor which was granted but that the drafting of documents occurred at a “snail’s pace” because the Public Solicitor’s office was relocating.

7. The applicant does not depose as to when he applied for legal aid assistance. Further, the actions or inactions of a lawyer are not a reasonable excuse for the lawyer’s client not to comply with a statutory time limit (see Elizabeth Kavi v. ANZ (2020) SC1951 at [10] and Ganglau Landowner Co Ltd v. Medaing (2020) SC1963 at [26]). Moreover, there is no explanation as to whether an application to extend the time to appeal was made and if not, why not. Notwithstanding that the Public Solicitor’s office was relocating, proper, prudent and professional practice dictates that procedures would have been put in place to accommodate and to attend to urgent matters. If this was not the case however, it may be that the applicant has a claim for professional negligence. I am not satisfied therefore, that a reasonable explanation has been given for not filing an appeal within time.

8. The next consideration is whether there has been a delay in filing the application for leave to review. This application was filed on 23^rd November 2022. This is 57 days or about two months after the appeal period had expired. This is almost one and a half times the statutory appeal period. No explanation at all is given in evidence as to this period of delay. I will assume the explanation is the same as the reason given for not filing an appeal within time. I have already found that a reasonable explanation in that regard has not been given.

9. Having found that a reasonable explanation for not filing an appeal within time has not been given and that a reasonable explanation for the period of time taken for the leave application to be filed has 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 Decision is warranted.

10. In considering the merits of the case sought to be argued by the applicant, after considering s. 33(2) Police Act and the reasons given of the primary judge, I am not satisfied that an arguable case has been disclosed.

11. 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 or one which requires this court’s determination on a new or novel point of law.

12. 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. Given this, it is not necessary to consider the other submissions of counsel. Consequently, for the above reasons, this application is dismissed.

Orders

13. The Court orders that:

a) This application for leave to review is dismissed;

b) No order as to costs.
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Public Solicitor: Lawyers for the Applicant