Frank A Griffin v Westpac Bank

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Los J, Konilio J
• Judgment Date: 30 April 1993
• Citation: [1993] PNGLR 352
• Court: Supreme Court
• Year: 1993
• Judgement Number: SC441

Supreme Court: Kapi DCJ, Los J, Konilio J

Judgment Delivered: 30 April 1993

SC441

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

S.C. REV. NO 12 OF 1993

Application for leave to

Review Pursuant to

Constitution S. 155(2) b)

Application by Frank A.

Griffin

Applicant

Westpac Bank-PNG-Ltd

Respondent

Waigani: Kapi DCJ

Los J

Konilio J

26 March & 30 April 1993

Judicial Review — Section 155 (2) (b) Constitution — Applicant does not

have to satisfy why he did not appeal when there is no right of

appeal against a consent order — Need to show cogent and coming

reasons — Lawyer acting without instructions.

Held: It is not just to allow a consent order to stand where

lawyer had no instructions to act in the matter.

S Injia for the Appellant

S Ketan for the Respondent

BY THE COURT: In an originating summons, the respondent claimed an order for possession of the premises known as allotment 16, Section 144, Matirogo, National Capital District. This possession was claimed pursuant to a Memorandum of Mortgage number 66505 dated the 23rd June 1988 made between the respondent and the applicant. This mortgage was executed over certain monies that were advanced to the applicant. The summons was originally set down for the 25th September 1992. According to the chronology of events submitted by counsel for the respondent, Mr Jack Patterson of Henaos, Lawyers and Attorneys sought an adjournment on the basis that he required to seek instructions from the applicant. The matter was adjourned to the 5th October, 1992 on this basis. It is not disputed that Mr Yasbi of Henaos appeared for the applicant and consented to the orders made at the hearing on the 5th October 1992. It is not clear from the evidence whether Mr Yasbi obtained the necessary instructions that were required to be obtained by Mr Patterson at the hearing on the 25th September 1992. I will return to this matter later as this is the basis of the judicial review. The court ordered that the applicant give possession of the said premises to the respondent.

The respondent took out a further summons dated 16th December 1992 for a writ of possession. An order for a writ of possession was made on the 18h December 1992.

The applicant has appealed against the court order dated 18th December 1992 (SCA 29 of 93). This matter is pending in the Supreme Court.

The applicant sought a judicial review of the order made on the 5th October 1992 under s. 155 (2) (b) of the Constitution. It is this matter which has come before us for determination. The ground relied upon is that at no stage did the applicant give any instructions to Henaos, Lawyers and Attorneys to represent him in this matter.

The principles governing a S 155 (2) (b) review have been settled by the Supreme Court. This jurisdiction was developed in the case of Avia Aihi -v- The State [1981] PNGLR 81 and Avia Aihi -v- The State (N0 2) [1982] PNGLR 44. See also Danny Sunu -v- The State...