In the Matter of an application pursuant to s155(2)(b) of the Constitution and in the Matter of the Independent State of Papua New Guinea v James Robert Colbert [1988] PNGLR 138

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Bredmeyer J, Amet J
• Judgment Date: 05 August 1988
• Court: Supreme Court
• Citation: [1988] PNGLR 138
• Year: 1988
• Judgement Number: SC352

Full Title: In the Matter of an application pursuant to s155(2)(b) of the Constitution and in the Matter of the Independent State of Papua New Guinea v James Robert Colbert [1988] PNGLR 138

Supreme Court: Kapi DCJ, Bredmeyer J, Amet J

Judgment Delivered: 5 August 1988

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN THE MATTER OF AN APPLICATION PURSUANT TO S 155 (2) (B) OF THE CONSTITUTION AND IN THE MATTER OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

V

COLBERT

Waigani

Kapi DCJ Bredmeyer Amet JJ

2 June 1988

5 August 1988

ADMINISTRATIVE LAW — Judicial review of judicial acts — Application to review National Court decision in civil jurisdiction — Ground for — Onus of proof — Where failure of lawyer to lodge appeal within time — Supreme Court Act (Ch No 37), s 17 — Constitution, s 155 (2) (b).

CONSTITUTIONAL LAW — Powers of Supreme Court — Review of judicial acts of National Court — Civil jurisdiction — Nature of — Principles applicable — Where failure by lawyer to lodge appeal within time — Supreme Court Act (Ch No 37), s 17 — Constitution, s 155 (2) (b).

On an application made pursuant to s 155 (2) (b) of the Constitution for review of a decision of the National Court in its civil jurisdiction, where the time limited by the Supreme Court Act (Ch No 37), s 17, for filing a notice of appeal had expired,

Held

(1) The discretionary power to grant such a review should be exercised only where:

(a) it is in the interests of justice;

(b) there are cogent and convincing reasons and exceptional circumstances, where 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.

Avia Aihi v The State [1981] PNGLR 81; Avia Aihi v The State (No 2) [1982] PNGLR 44 and Danny Sunu v The State [1984] PNGLR 305, followed.

(2) In deciding whether there are cogent and convincing reasons the following matters are relevant;

(a) the reasons for the failure to lodge a notice of appeal within time; and

(b) the merits of the case sought to be argued.

Avia Aihi v The State [1981] PNGLR 81; Avia Aihi v The State (No 2) [1982] PNGLR 44 and Danny Sunu v The State [1984] PNGLR 305, followed.

(3) (By Kapi Dep CJ and Bredmeyer J) Negligence or inadvertence on the part of the lawyer in failing to lodge a notice of appeal in a civil action within time will not of itself be regarded as a cogent or convincing reason unless there are exceptional circumstances beyond the control of the lawyer.

(4) The onus of satisfying the Court that the grounds for exercise of the discretion to grant judicial review exist lies on the applicant.

(5) (By Kapi Dep CJ and Bredmeyer J) In circumstances where the failure to lodge a notice of appeal within time and a six month delay in bringing the application were attributable to negligence on the part of the lawyers for the applicant and where the case to be argued was based on established principles which were not challenged, the onus had not been discharged and judicial review should be refused.

(6) (Per Amet J dissenting) Whilst the solicitor's failure to act promptly amounted in the circumstances to "exceptional circumstances" the absence of full and proper argument addressing the merits of the case to be argued on the review precluded judicial review being granted.

Cases Cited

Attorney-General (NSW) v Bertrand (1867) 4 Moo NS 460; 16 ER 391.

Avia Aihi v The State [1981] PNGLR 81.

Avia Aihi v The State (No 2) [1982] PNGLR 44.

Green and Co Pty Ltd v Green [1976] PNGLR 73.

Houghton v Hackney Borough Council (1961) 3 KIR 615.

Nadan v The King [1926] AC 482.

Placer Holdings Pty Ltd, Re [1982] PNGLR 326.

Sunu, Danny v The State [1984] PNGLR 305.

Application for Judicial Review

This was an application made pursuant to s 155 (2) (b) of the Constitution, for review of a decision of the National Court in its civil jurisdiction where the lawyer for the applicant had failed to lodge a notice of appeal within the time prescribed by the Supreme Court Act (Ch No 37), s 17.

Counsel

L Kari, for the applicant.

T J Glenn, for the respondent.

Cur adv vult

5 August 1988

KAPI DCJ: James Robert Colbert was a teacher employed at the Port Moresby Teachers College. He was accommodated on the premises of the college. On the evening of 10 June 1983 there was a disturbance in the neighbour's residence. Mr Colbert went to investigate.

As he was moving across to investigate, he was struck by a stone on the head. Apparently criminals, who were trying to break into the residence, threw the stone. He sustained injuries as a result.

The State was sued for damages in common law on the ground that the State failed to provide adequate security measures to ensure safety and had failed to provide safe premises or both. A judgment was given for Mr Colbert and a sum of K488,711 awarded in damages. The judgment was given on 28 October 1987.

The time allowed for appeal to the Supreme Court under the Supreme Court Act (Ch No 37) expired on 7 December 1987. The State attempted to file a notice of appeal on 8 December 1987 and this was rejected by the Registrar as being out of time.

The State took no further substantive action in the matter until 29 December 1987 when an application to extend time in which to appeal was filed in accordance with the Supreme Court Act. This application was totally misconceived and this was brought to the State lawyer's attention by lawyers for Mr Colbert in a letter dated 3 March 1988. The lawyers pointed out that the application was misconceived and would not succeed. They were also advised that the appropriate action that should be taken was under s 155 (2) (b) of the Constitution. The State lawyers took no notice and proceeded with the application to extend time.

That application came before the Supreme Court on 21 March 1988. Of course, the Supreme Court dismissed the application as the Supreme Court has no discretion to extend time for applications which are made outside the 40 day time limit.

On 21 April 1988 the State filed an application under s 155 (2) (b) of the Constitution. It is this application which is now for consideration by this Court. One would have thought that by this time they would have got the law right! The application seeks leave to file a notice of appeal out of time. That, in substance, is different from a judicial review under s 155 (2) (b) of the Constitution. Again this matter was correctly pointed out by the lawyers for Mr Colbert in a letter dated 29 April 1988. And again the State lawyers took no action and have made no attempt to amend the present application. Strictly speaking, I could dismiss this application on this basis alone. However, that would be a very narrow basis upon which to determine this application.

The basis of a s 155 (2) (b) application is to be found in the pioneering cases of Avia Aihi v The State [1981] PNGLR 81 and Avia Aihi v The State (No 2) [1982] PNGLR 44. The true nature of this application is to be found in the judgment of Kearney Dep CJ in the first case. In Avia Aihi v The State [1981] PNGLR 81 at 92 he said:

"... I consider that it is a truly discretionary jurisdiction, of much the same type as that of the Privy Council in exercising what the common law recognises as its inherent prerogative to grant special leave to appeal, though an applicant has no right by statute to appeal."

At 93 he said:

"Some guide perhaps may be obtained from a consideration of the grounds upon which the Privy Council grants special leave to appeal in criminal cases pursuant to the inherit prerogative power; ..."

In Attorney-General (NSW) v Bertrand (1867) 4 Moo NS 460 at 474-475; 16 ER 391 at 397, in considering the prerogative power, the Privy Council said:

"but the exercise of this prerogative is to be regulated by a consideration of circumstances and consequences; and interference by Her Majesty in Council in criminal cases is likely in so many instances to lead to mischief and inconvenience, that in them the Crown will be very slow to entertain an appeal by its Officers on behalf of itself or by individuals. The instances of such appeals being entertained are therefore very rare. ... the result is, that any application to be allowed to appeal in a criminal case comes to this Committee labouring under a great preliminary difficulty — a difficulty not always overcome by the mere suggestion of hardship in the circumstances of the case; yet the difficulty is not invincible. It is not necessary, and perhaps it would not be wise, to attempt to point out all the grounds which may be available for the purpose; but it may safely be said, that when the suggestions, if true, raise questions of great and general importance, and are likely to occur often, and also where, f true, they show the due and orderly administration of the law interrupted, or diverted into a new course, which might create a precedent for the future; and also where there is no other means of preventing these consequences, then it will be...