In the matter of an Application for Review under S 155 (2) (B) of the Constitution; Luke Marano v Jack Nouari and Robert Igara as Chief Secretary to Government and The Independent State of Papua New Guinea (2013) SC1307

• Jurisdiction: Papua New Guinea
• Judge: Injia, CJ
• Judgment Date: 19 December 2013
• Court: Supreme Court
• Citation: (2013) SC1307
• Docket Number: SCR REV. 44 OF 2009
• Year: 2013
• Judgement Number: SC1307

Full Title: SCR REV. 44 OF 2009; In the matter of an Application for Review under S 155 (2) (B) of the Constitution; Luke Marano v Jack Nouari and Robert Igara as Chief Secretary to Government and The Independent State of Papua New Guinea (2013) SC1307

Supreme Court: Injia, CJ

Judgment Delivered: 19 December 2013

SC1307

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR REV. 44 OF 2009

IN THE MATTER OF AN APPLICATION FOR REVIEW UNDER S 155 (2) (B) OF THE CONSTITUTION

Between:

LUKE MARANO

Applicant

And:

JACK NOUARI

First Respondent

And:

ROBERT IGARA as Chief Secretary to Government

Second Respondent

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

Waigani: Injia, CJ

2013: 19th December

JUDICIAL REVIEW – Leave to seek review – Exercise of discretion – Principles – Application of principles to facts – Application Refused – Constitution, s 155 (2)(b); Supreme Court Rules 2012, O 5 rr 1, 2 & 3.

Counsel:

Applicant in person

Ms Bate, for the Respondents

19th December, 2013

1. INJIA, CJ: This is an application for leave to apply for review of a decision of the National Court sitting in Lae made on 30 April 2009 to dismiss the applicant’s claim. The applicant failed to appeal, hence this application. Parties made oral and written submissions on the matter and I reserved my decision which I now deliver. My consideration and determination of the matters argued are embodied in my reasons for decision.

2. The applicant is a former civil servant. On 27 November 1995, his services were terminated. In 1997 he was reinstated following a Court ruling. In 1999, he was retrenched from the civil service. On 9 July 1999, he entered into a Deed of Release for the payment of his service entitlement under which he was paid K48,016.67. He was unhappy with the payment. He brought an action against the State for damages to recover pre-retrenchment service entitlements and post retrenchment entitlements. The court entered default judgment in his favor. The matter proceeded to trial on assessment of damages. At the trial, lawyer for the State appeared and contested the damages. The lawyer produced in Court copies of the Deed of Release. On 6 November 2007, the Court completed the hearing adjourned for decision on a date to be advised. On 30 April 2009, the trial judge delivered his decision. Only the lawyer for the respondent was in attendance to receive judgment. The decision did not reach the applicant until 30 June 2010 by which the 40 days allowed for appealing had expired. In the judgment, the trial judge refused to award damages. The trial judge gave two reason for the decision. First with regard to the pre-retrenchment claim, the applicant should not be paid because he did not earn his pay. Secondly, with regard to post retrenchment benefits, the Deed of Release was binding on him. On 14 October 2009, the applicant filed this application. On 2 May 2013, I heard the leave application and reserved my decision which I now deliver.

3. The application is made under O 5 rr 1 & 3 of the Supreme Court Rules 2012 (SCR

These rules are in the following terms:

“ Division 1. Form of review application

1. An application to the court under Constitution Section 155(2)(b) lies with leave only, or without leave. Where the application lies with leave only the provisions of Order 7 Division 2 shall be followed, substituting the word “applicant” for the word appellant” and the word “application” for the word “appeal”.

2. ……………..

3. An application for leave for review shall be made before a Judge”.

4. The principles governing exercise of discretion to be applied in determining leave for review are those enunciated by the Supreme Court in Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120. I quote the pertinent parts of the joint judgment of the majority in that case comprising Justice Gavara-Nanu and Justice Yagi, as follows:

“Leave

2. For the applicant to be granted leave it must satisfy the following criteria:-

(i) Whether there was a delay by the applicant in making the application, if so whether there are exceptional circumstances showing manifestation of substantial injustice or whether the case is of such special gravity warranting the grant of leave;

(ii) The grant of leave is in the interest of justice; and

(iii) That there are clear arguable issues warranting leave to review the decision.

3. (In) regard to the issue of delay it has to be considered subjectively to matters raised by the other criteria for leave. The Court has wide discretion when considering delay, thus, even if the Court finds that there is delay, if the applicant can satisfy all or any of the criteria for leave, the Court can in the exercise of its discretion still grant leave: Avia Aihi v. The State (No. 2) [1982] PNGLR 44”

5. The majority found that the delay by 2 years in bringing the application was found to be unreasonable and unsatisfactory. Notwithstanding those findings, the majority found that grave injustice would occur if the decision was not reviewed in the circumstances of the case. The majority said:

“9.Except for the issue of delay, the applicant has in our opinion satisfied the other three criteria stated above for the grant of leave. In our opinion the interest of justice merits a review, given that if the application is dismissed at leave stage on the basis of delay alone, there will be substantial injustice to the applicant, the decision will have serious and grave consequences for the applicant. The manner in which the applicant obtained the title to the property is a serious legal issue which ought to be properly and fully determined on merit. All these matters in our respectful opinion merit review. As we alluded to earlier, the issue of delay has to be considered subjectively and in our opinion the Court would not be exercising its discretion properly and judicially if application is dismissed on the basis of delay alone.”

6. Similar pronouncements are to be found in earlier cases on applications for leave for review: New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522. In that case, the Court emphasized that the paramount consideration was whether there were cogent and convincing reasons that demonstrate substantial miscarriage of justice such that in the interest of justice, leave ought be granted.

7. The principles developed in these cases find their source in judicial pronouncements in many cases commencing with Avia Aihi (No 2) [1982] PNGLR 44 and expounded in subsequent cases including Danny Sunu v The State [1984] PNGLR 305, The State v Colbert [1988] PNGLR 138, Joseph Kupo v Steven Raphael (2004) SC751 & Application of Herman Leahy (2006) SC 855.

8. More recently, in The State v Toka Enterprises Ltd (2013) SC1266, I added two further criteria. I said:

“ First, the question of the applicant’s standing or locus standi to make the application becomes relevant to be determined. In a situation where the applicant is a party in the proceedings in the Court below, the question of standing does not arise. The question will arise if the applicant is not a party in the proceedings in the court below. The test is whether the applicant is directly affected by the decision of the Court below such that he or she has sufficient interest in the subject matter of the application: see Kitogara Holdings v NCDIC [1988] PNGLR 346.

Secondly, an applicant must offer a satisfactory explanation for failing to appeal the decision. That explanation coupled with the explanation for the delay in bringing the application for leave should be considered together when the Court is considering the question of delay.”

9. In summary, the criteria for grant or refusal of leave for review under s155 (2)(b) of the Constitution, are as follows:

(1) Locus standi;

(2) Satisfactory explanation for default in bringing appeal;

(3) Satisfactory explanation for delay in bring application for leave for

Review;

(4) Exceptional circumstances showing manifestation of substantial injustice; or serious legal or factual issues that raise an arguable case for a full review of the decision; and

(5) Interest of justice

10. In considering matters under any of those criteria, the Court is not determining the merits of those points. The Court should determine whether those points raise an arguable case for review based on a quick perusal of the material placed before it. That does mean to say that the Court should avoid determining points that clearly lack merit. It defeats the purpose of a leave application if points which clearly lack legal merit are disposed of at the leave stage if leave were granted to advance points that clearly lack merit or without clear legal substance.

Locus standi

11. The applicant is a party in the proceedings in the court below. The question of standing does not arise.

Satisfactory explanation for default in bringing appeal within time

12. The applicant has offered a satisfactory explanation. His explanation is contained in his affidavit. The explanation has not been countered by evidence from...