Review Pursuant to Constitution s155(2)(b); Application by Lawrence Bokele to Review the Decision of The National Court Refusing Leave to Review Decision of Police Commissioner (2002) SC682

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Gavara-Nanu J, Davani J
• Judgment Date: 05 April 2002
• Citation: (2002) SC682
• Docket Number: SCR No 41 of 2001
• Court: Supreme Court
• Year: 2002
• Judgement Number: SC682

Full Title: SCR No 41 of 2001; Review Pursuant to Constitution s155(2)(b); Application by Lawrence Bokele to Review the Decision of The National Court Refusing Leave to Review Decision of Police Commissioner (2002) SC682

Supreme Court: Kapi DCJ, Gavara-Nanu J, Davani J

Judgment Delivered: 5 April 2002

SC682

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SC Review No. 41 of 2001

REVIEW PURSUANT TO CONSTITUTION

SECTION 155(2)(B)

APPLICATION BY LAWRENCE BOKELE

TO REVIEW THE DECISION OF THE NATIONAL

COURT REFUSING LEAVE TO REVIEW DECISION OF

POLICE COMMISISONER

Waigani: Kapi DCJ., Gavara-Nanu J., Davani J.

26th March, 5th April 2002

Application for Judicial Review under s 155(2)(b) of the Constitution – proper principles considered.

Application for leave for judicial review under O 16 r 3 of the National Court Rules – whether consent of parties to grant leave is in itself a valid ground to grant leave?

P.Ame for the applicant

J. Palek for the respondents

5th April 2002

By The Court: This is an application for review under s 155 (2) (b) of the Constitution.

The circumstances giving rise to the review are these. The Police Commissioner terminated the applicant’s employment as a policeman for misconduct. He applied for judicial review of the Commissioner ‘s decision under O 16 of the National Court Rules (Rules). The matter came before the National Court on 8th June 2001 to determine leave for judicial review under O 16 r 3 of the Rules. At the hearing, counsel for the respondents consented to the grant of leave. However, the National Court after considering the merits of the application, refused leave and dismissed the application on 22nd June 2001.

The applicant was not notified of the date of the delivery of judgment and was not made aware of the judgment until 30th July 2001 when he discovered upon his own enquiry at the registry. The applicant instructed his lawyers to file an appeal on the same day. This gave the lawyers only two days within which to file an appeal or an application for extension of time within the 40 days. The lawyers did not file the appeal within time but purported to do so on 14th August 2001 and the registry rightly rejected it as out of time.

As a consequence, the lawyers filed this application for review under s 155 (2) (b) on 26th September 2001, two months after the 40 days expired.

The principles applicable to judicial review under s 155 (2) (b) of the Constitution are now well settled. Where an applicant fails to exercise the right to appeal within the period stipulated by statute, the Supreme Court may review the decision from the court below in the exercise of its inherent jurisdiction (Avia Aihi v The State [1981] PNGLR 81. An applicant must satisfy the Court (1) why the statutory period was allowed to expire and (2) show that the case merits a hearing (see Avia Aihi v The State (No. 2) [1982] PNGLR 44 at 45 per the joint judgment of Kidu CJ and Andrew J). They set out the nature of the onus the applicant must discharge at pages 46-47.

In the present case, the applicant discovered the delivery of the judgment on 30th July 2001, two days before the 40 days expired. The applicant in his affidavit explained that he immediately instructed his lawyers on the same day and paid the K50.00 requested by his lawyers. The applicant himself did everything possible in the circumstances and instructed his lawyers.

However, the lawyers failed to file the appeal or application to extend time within the remaining two days. The lawyers failed to file an affidavit explaining why they allowed the two days to expire. This conduct would amount to negligence on the part of the lawyers. The negligence of a lawyer is not a ground for exercising the discretion to grant leave to review (PNG v. Colbert [1988] PNGLR 138). However, we would not determine the result of this review on this ground alone.

The application raises several grounds on the merits of this application:

(1) The respondents consented to leave sought by the appellant thus his Honour erred in law and in fact in not exercising his discretion to allow the matter to proceed to review.

(2) His Honour erred in law and or fact to substantially determine the appellant’s case without the appellant prosecuting his own case through counsel thus denying the appellant a right to a fair hearing pursuant to s 59 (2) of the Constitution.

(3) His Honour erred in law or fact in not considering the fact that the appellant had no way to have his dismissal review except by the National Court.

(4) His Honour erred in law and in fact that his Honour did not rule whether or not the appellant has sufficient interest in the matter and whether the decision to dismiss the appellant was reasonable in the circumstances of the whole case.

We can deal with grounds (2), (3) and (4) very briefly. Ground (2) has no merit in that the issue before the trial judge was one of leave for judicial review and he did not deal with the substantive issues...