Fayana v Waipo [2023] PGSC 97; SC2448 (29 August 2023)

SC2448

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 25 OF 2022

FRANCIS FAYANA
Appellant

-V-

MICHAEL WAIPO in his capacity as Commissioner for Correctional Services
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Kariko, Kaumi & Narokobi, JJ
2023: 29^th August

JUDICIAL REVIEW – appeal against dismissal of proceedings – error alleged in finding the notice of motion under O16 r5(1) was not filed – ground conceded to – appropriate orders

The appellant’s application for judicial review was dismissed by the National Court which determined that no notice of motion under O16 r5(1) of the National Court Rules was filed. An appeal was lodged against that specific finding.

Held:

The power of the Supreme Court on hearing an appeal under s 16(d) of the Supreme Court Act to remit a case for further hearing is appropriate where the merits of the case have yet to be heard and determined.

Cases Cited:

Fayana v Waipo (2022) N9833

Legislation:

National Court Rules
Supreme Court Act

Counsel:

Mr L Giyomwanauri, for the Appellant
Mr K Kipongi, for the Respondent

29^th August 2023

1. BY THE COURT: The appellant filed proceedings OS (JR) No. 765 of 2014 in the National Court for judicial review of a decision by the Commissioner for Correctional Services that directed the appellant to personally pay for the costs of damages caused to a hired vehicle the appellant was officially driving when it was involved in a collision.
   
2. The application for judicial review was dismissed by the trial judge seemingly for being incompetent after his Honour held that the mandatory notice of motion required for an application for judicia review under O16 r5(1) of the National Court Rules was not filed. The judgment is published as Fayana v Waipo (2022) N9833.
   
3. The appellant lodged this appeal from that decision alleging that the subject notice of motion was in fact duly filed and the trial judge erred in finding otherwise.
   
4. The respondents, collectively “the State”, has conceded the ground of appeal, and on hearing the parties and reading the appeal documents, we agree the concession is proper.
   
5. The powers of this Court in deciding an appeal are set out in s 16 of the Supreme Court Act which states (with emphasis added):
   

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may –

(a) ....; or
(b) affirm, reverse or modify the judgement; or
(c) ....; or
(d) remit the case in whole or in part for further hearing; or
(e) .....

6. In the circumstances, we would allow the appeal and set aside the orders of the trial judge. We also consider it appropriate that the case is remitted to the National Court as the application for judicial review has yet to be heard and determined on its merits. Obviously, costs should follow the event.
   
7. The Court orders that:
   
   • (1) The appeal is upheld.
   • (2) The orders of the National Court made on 18 August 2022 in proceedings OS (JR) No. 765 of 2014 are set aside.
   • (3) The matter is remitted to the National Court for the application for judicial review to be heard by a Judge other than the appealed Judge.
   • (4) The Registrar of the National Court shall have the matter listed for directions hearing and advise the parties accordingly.
   • (5) The appellant’s costs of and incidental to this appeal shall be paid by the State, to be taxed if not agreed.
   • (6) Time is abridged.
     

________________________________________________________________
Public Solicitor: Lawyer for the Appellant
Solicitor General: Lawyer for the Respondent