Review pursuant to Constitution Section 155(2) (B) and Section 155(4) Application by Joseph Kintau, Acting Director, Civil Aviation Authority of Papua New Guinea (2011) SC1125

• Jurisdiction: Papua New Guinea
• Judge: Batari .J, Manuhu .J, Yagi .J
• Judgment Date: 28 September 2011
• Citation: (2011) SC1125
• Docket Number: SCR NO. 21 OF 2010
• Court: Supreme Court
• Year: 2011
• Judgement Number: SC1125

Full Title: SCR NO. 21 OF 2010; Review pursuant to Constitution Section 155(2) (B) and Section 155(4) Application by Joseph Kintau, Acting Director, Civil Aviation Authority of Papua New Guinea (2011) SC1125

Supreme Court: Batari .J, Manuhu .J, Yagi .J

Judgment Delivered: 28 September 2011

SC1125

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 21 OF 2010

REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(b) AND SECTION 155(4)

APPLICATION BY JOSEPH KINTAU, ACTING DIRECTOR, CIVIL AVIATION AUTHORITY OF PAPUA NEW GUINEA

Waigani: Batari .J, Manuhu .J, Yagi .J

2010: 26 October

2011: 28 September

APPEALS — Appeal from National Court — Supreme Court as final court of appeal — Powers of – Whether Supreme Court has power to review decisions of differently constituted Court — Constitution, s 155 (2) (a), (4)

ADMINISTRATIVE LAW — Judicial review — Jurisdiction of Supreme Court — No power to review decision of differently constituted court — Constitution, s 155 (2) (a), (4)

PRACTICE AND PROCEDURE — Supreme Court — Appeals — Judicial review — No appeal from Supreme Court — No judicial review of Supreme Court decision — Constitution s 155 (2) (a), (4)

Constitution s. 155 (2) (a) provides that the Supreme Court is the final court of appeal.

Constitution s. 155 (4) provides that the Supreme Court has "inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case".

Held

Where an appeal to the Supreme Court has been determined:

(a) Constitution s. 155 (2) (a) prohibits any further or other right of appeal;

(b) Constitution s 155 (4) does not permit a differently constituted Supreme Court to review that determination.

Cases Cited

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

Avia Aihi v The State [1981] PNGLR 81

Danny Sunu v The State [1984] PNGLR 305,

The Independent State of Papua New Guinea v Colbert [1988] PNGLR 138

SC Review No 4 of 1990; Application by Willy Kili Goiya [1991] PNGLR 170

New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR, 522

Pogera Joint Venture & Placer (PNG) Ltd v Joshua Siapu & Ors (2008) SC 916.

Waghi Savings and Loans Society Ltd v Bank of South Pacific Limited (1980) SC185

Garamut Enterprises Ltd v Steamships Trading Ltd (1999) SC 652

TST Holdings Pty Ltd & Anor v. Tom Apelis (1997) SC 534

David Lambu v. Peter Ipatas & Ors (1999) SC 645

Application by Anderson Agiru (2003) SC704

Powi v Southern Highlands Provincial Government (2006) SC 844

Andrew Trawen and & Anor v. Steven Pirika Kama (SCRev 55 of 2008)

Michael Laimo v. Andrew Trawen & Ors (2010) SC 1063 (SCRev 56 of 2008)

Judicial review

This was an application for judicial review of a decision of the Supreme Court, dismissing an appeal for want of competence. The Respondent objected to the competency of the application.

Counsel

T. Manjin, for the Applicant/respondent.

I. Shepherd, for the Respondent/applicant.

28 September, 2011

1. BY THE COURT: OVERVIEW: The Supreme Court initially dismissed an appeal by Joseph Kintau Acting Director for Civil Aviation Authority, (the Applicant) against a decision of the National Court. In this proceeding, he seeks a review of the Supreme Court decision dismissing his appeal. This ruling is on the Respondent’s Notice of Objection to Competency.

Application to review Supreme Court Decision – General Observations

2. Before we embark on the substantive issues, we note in passing that, this application for judicial review epitomizes the growing tendency of parties dissatisfied or aggrieved by a Supreme Court decision to appeal or seek a review of that decision. Such applications are pursued not under the slip rule principles, but under some perceived or postulated Supreme Court infinite power to review its own decision. This therefore raises the pivotal issue of whether this Court has jurisdiction to review its own decision or a decision of another Supreme Court.

3. The other matter we note is the lack of procedure for dealing with cases in the nature of the application before this Court where the Applicant seeks to review a decision of the Supreme Court where the right to appeal has been exhausted. This issue was not raised as part of the objection to competency. It is however, important to note that judicial review applications under Constitution s 155(2) and (4) to review a decision of the National Court do not lie without leave.

4. Such leave may be sought separately adopting Order 16 of the National Court Rules (the NCR) procedure or it may be argued together with the review application itself. In the pioneering cases of Avia Aihi v The State [1981] PNGLR, 81 and Avia Aihi v The State [1982] (No 2) PNGLR 44, leave was granted by the Full bench of the Supreme Court for the applicant to have her criminal conviction reviewed after she lost her right to appeal. By consent, the both applications for leave and the substantive review arguments were heard together. See also, Danny Sunu v The State [1984] PNGLR 305, another application from a criminal conviction. That now seems to represent the common practice for review applications from criminal convictions.

5. The case of, The Independent State of Papua New Guinea v Colbert [1988] PNGLR 138 represents the first time an application was made under s 155 (2)(b) for judicial review of a National Court decision in a civil case. The Supreme Court resorted to an ad hoc procedure in the absence of established procedure for dealing with an application for judicial review pursuant to s 155 (2)(b) of the Constitution where the applicant’s lawyer failed to lodge notice of appeal within the 40 day time limit due to his miscalculation of the 40 day period.

6. The Court did not hear submissions on the merits. However, it adopted the principles for judicial review in Avia Aihi v The State and by majority decision held that, “Negligence on the part of the lawyer in not protecting the right of appeal of the client in a civil case is not a valid ground for exercising power of judicial review unless there are exceptional circumstances beyond his control.”

7. In New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR, 522 the issue of leave was heard separately and the applicant was granted leave on the basis that, “the merits of the case to be argued on review which were fully presented on application provided cogent and convincing reasons and exceptional circumstances in favour of granting leave to review.” See also, Donigi v Base Resources Ltd [1992] PNGLR, 110.

8. While this matter has progressed thus far without leave, we express the view that this should not be regarded as setting a precedent. All future applications for judicial review of a Supreme Court decision should be filed in compliance with the requirement for leave or pursuant to directions sought under O 11 r 9 of the Supreme Court Rules (the SCR) where there is lack of prescribed procedure.

Background

9. In National Court proceedings in OS 493 of 2006, the Respondent sought a judicial review of a decision by the Applicant. In that review the Respondent sought an Order in the nature of certiorari to quash the decision of the Applicant. That proceeding was resolved by way of consent orders which were granted on 20 May, 2009. The matter then came before his Honour, Gavara-Nanu J on 14 October, 2009 for assessment of damages pursuant to O 16 r 7 of the NCR. On 19 October, 2009 the court awarded the plaintiff, US$4,945,813.02 in damages inclusive of profit, interests and costs.

10. The Applicant appealed that decision in SCA No. 156 of 2009. The Respondent challenged the competency of the appeal before a full Bench (Salika DCJ Batari J and Davani J) and by majority ruling (Salika DCJ and Davani J) the Court held that the grounds of appeal raised issues of facts only, so, leave having not been obtained rendered the appeal incompetent.

11. Batari J dissented on the issue of leave but joined the majority in holding that the appeal was incompetent for being commenced under a wrong originating process. In a unanimous decision, the court ruled that, the appeal ought to have come before the Supreme Court by way of Notice of Motion under O.10 of the Supreme Court Rules (the ‘SCR’) and not by way of Notice of Appeal under O.7 of the SCR. The court upheld the Respondent’s objection and dismissed the appeal for want of form on 5th May, 2010.

Judicial Review Application – Grounds.

12. The Applicant then filed this application on 23rd June, 2010 alleging several grounds of errors against the Supreme Court as follows:

“I. REVIEW OF JUDICIAL ACTS OF THE NATIONAL COURT PURSUANT TO SECTION 155 (2)(b)

A. His Honour Justice Gavara-Nanu wrongly exercised his discretion to grant leave for judicial review when:

(i) the application brought by the Plaintiff under...