Tukupa Walo Incorporated Land Group (No. 16078) v Exxonmobil PNG Ltd [2023] PGSC 46; SC2392 (13 April 2023)

SC2392

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 35 OF 2022

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

BETWEEN:
TUKUPA WALO INCORPORATED LAND GROUP (No. 16078)
Applicant

AND:
EXXONMOBIL PNG LIMITED
Respondent

Waigani: Hartshorn J.
2023: 14^th February, 13^th April

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

Counsel:

Mr. J. S. Goava, for the Applicant
Mr. K. Imako, for the Respondent

13^th April, 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 4^th August 2022 (Decision). The Decision allowed the appeal of the respondent and quashed the decision of the Petroleum Warden made on 16^th November 2021 in proceedings EDC 1 of 2021.

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 evidence given on behalf of the applicant by Mr. Edward Taja is that a notice of appeal dated 12^th September 2022 was purportedly deemed delivered to the Supreme Court registry on or about 13^th September 2022 on an understanding that it would be filed through IECMS anytime on 14^th or 15^th September 2022. The advice from the Supreme Court Registry later however, was that the notice of appeal was filed two days out of time. There is no other evidence in support of Mr. Taja’s evidence. A copy of the notice of appeal is not in evidence. Further, there is no evidence of the filing or deposit of the notice of appeal at the Supreme Court Registry or through the IECMS system such as confirming correspondence, email or otherwise, or an acknowledgement of receipt or a Supreme Court Registry date stamp on a copy of the notice of appeal or the name of the person at the Supreme Court Registry who purportedly assisted Mr Taja.

7. Apart from the evidence of Mr. Taja, there is no evidence before this court as to a notice of appeal being lodged or filed. Further, as the Determination was delivered on 4^th August 2022, the last day for a notice of appeal to have been filed was 13^th September 2022. If the notice of appeal was filed pursuant to the understanding to which Mr. Taja deposes, being anytime on 14^th or 15 September 2022, then the notice of appeal would have been filed out of time.

8. Another consideration as to the notice of appeal not being filed in time is that Mr. Taja deposes that it had been resolved on or about the first week of September 2022 on behalf of the applicant to engage Mr. John Sinaka Goava of Sannal Lawyers, to advise on the prospects of an appeal to the Supreme Court. In that process Mr. Taja deposes that he engaged with the unnamed person at the Supreme Court Registry concerning the filing of the notice of appeal. If Mr. Goava had been engaged in the first week of September, it would be surprising if his services and expertise were not relied upon to prepare the notice of appeal and so that it could be filed in time. The evidence is lacking in this regard.

9. Given the above, I am not satisfied that a reasonable explanation for not filing an appeal within time has been given.

10. The next consideration is whether there has been a delay in filing the application for leave to review and if so, has a reasonable explanation been given. Here, the application for leave to review was filed three months and five days after the expiry of the period in which an appeal should have been filed. By comparison, this period of time is about two and a half times the period of time permitted to file an appeal. In my view this constitutes delay. There is no explanation for this delay in evidence and in such absence, I am not satisfied that a reasonable or any explanation has been given.

11. 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.

12. As to the merits of the case sought to be argued by the applicant in this Court, there is insufficient material before this court for an assessment of the merits to be made. In such circumstances I will assume for present purposes only that the applicant has an arguable case.

13. Further, following a consideration of the documentation before the court, including the grounds set out in the application, the evidence and the submissions made, I am not satisfied that in this instance any exceptional circumstances or the specific exceptional circumstances as described by Injia CJ (as he then was) in Kalu's case (supra), have been shown to exist. This is not a test case or one which requires this court’s determination on a new or novel point of law.

14. It has not been shown to be and it is not in my view, 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

15. The Court orders that:

a) This application for leave to review is dismissed;

b) The costs of the respondent of and incidental to the application for leave to review shall be paid by the applicant.
__________________________________________________________________
Sannel Lawyers: Lawyers for the Applicant
Allens: Lawyers for the Respondent