Kaki v Kelly [2023] PGSC 47; SC2391 (17 April 2023)

SC2391

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 28 OF 2022

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

BETWEEN:
MECK KAKI
Applicant

AND:
MARTIN KELLY
Wapenamanda Disrict Rural Police Commander
First Respondent

AND:
MATHEW UVOVO
Wabag Police Station Commander
Second Respondent

AND:
MATHEW KOROP
Wapenamanda Police Station Commander
Third Respondent

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Hartshorn J.
2023: 13^th February, 17^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
Rupindi Maku v. Steven Maliwolo (2012) SC1171
Benjamin Sengi v. The State (2015) SC1425
Damien Kora v. Carol Pio (2018) N7434
Seribu Daya (PNG) Ltd v. Tropicana Ltd (2020) N8261
Benjamin Sengi v. The State (2015) SC1425
Motor Vehicles Insurance Ltd v. Fura Opeta (2020) SC1954

Counsel:
Mr. G. Manda, for the Applicant
Mr. R. Uware, for the Respondents

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 12^th August 2022 (Decision). The Decision ordered that the claim of the plaintiff, now applicant, for damages was refused. The applicant had commenced a proceeding in the National Court seeking amongst others, damages for the destruction of property. It was claimed that the respondents’ had failed in their respective duties and that this had resulted in members of warring tribes causing damage and destruction to property of the applicant.

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 for not filing an appeal in time is by the applicant’s former lawyer, Mr. Frank Yapao. Mr. Yapao deposes amongst others, that he was never informed of the date when the Decision was to be delivered. He further deposes that he had followed up with the primary judge’s associate and the Registry clerks and was constantly advised that he would be notified when the Decision was to be delivered. There is not in evidence copies of any correspondence sent, email or otherwise, or of file notes written by Mr. Yapao of the enquiries he made or of him being constantly advised and by whom, that he would be notified. There are no dates given of when Mr. Yapao or someone on his behalf attended at the Registry to enquire after the decision to be delivered. The primary judge reserved on 26^th April 2022. There should have been attendances at the Registry at least every two weeks from then to check the court file and ascertain the status. There is no evidence of such attendances.

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

8. 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 about 42 days after the time filing an appeal had expired. The explanation for the time taken is the same as for not filing an appeal within time and that it took the applicant time to obtain the applicants file from Frydan Lawyers. The time taken of 42 days as referred to, is longer than the time given for an appeal to be filed. To that extent there is delay. Any problems encountered in obtaining the file from Fydan Lawyers and Mr. Yapao is a matter between the applicant and his former lawyers. If his former lawyers are at fault, it may be that the applicant has recourse against them.

9. In any event and for the reasons referred to earlier, I am not satisfied that a reasonable explanation for the delay in filing the application for leave to review has been given.

10. 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.

11. As to the merits of the case sought to be argued by the applicant in this Court, from a quick perusal of the proposed grounds for review, I am not satisfied that the applicant has an arguable case that is likely to succeed. In this regard I refer to the Supreme Court judgment in Rupindi Maku v. Steven Maliwolo (2012) SC117 and the National judgments of Damien Kora v. Carol Pio (2018) N7434 and Seribu Daya (PNG) Ltd v. Tropicana Ltd (2020) N8261 at [65].

12. 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.

13. Moreover, 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

14. The Court orders that:

a) This application for leave to review is dismissed;

b) The costs of the respondents of and incidental to the application for leave to review shall be paid by the applicant.
__________________________________________________________________
Greg Manda Lawyers: Lawyers for the Applicant
Solicitor General: Lawyers for the Respondent