SCR Rev. 43 of 2002; In the matter of an Application for review under s155 (2) (b) of the Constitution; The Independent State of Papua New Guinea and Pepi Kimas, Sercetary for Lands & Physical Planning and Dr. Puka Temu, Minister for Lands & Physical Planning v Toka Enterprises Limited (2013) SC1346

• Jurisdiction: Papua New Guinea
• Judge: Injia, CJ
• Judgment Date: 29 November 2013
• Court: Supreme Court
• Citation: (2013) SC1346
• Year: 2013
• Judgement Number: SC1346

Full Title: SCR Rev. 43 of 2002; In the matter of an Application for review under s155 (2) (b) of the Constitution; The Independent State of Papua New Guinea and Pepi Kimas, Sercetary for Lands & Physical Planning and Dr. Puka Temu, Minister for Lands & Physical Planning v Toka Enterprises Limited (2013) SC1346

Supreme Court: Injia, CJ

Judgment Delivered: 29 November 2013

Supreme court review – application for leave to review

SC 1346

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR Rev. 43 of 2002

In the matter of an Application for review under s 155 (2) (b) of the Constitution

Between:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

First Applicant

And:

PEPI KIMAS, SERCETARY FOR LANDS & PHYSICAL PLANNING

Second Applicant

And:

DR. PUKA TEMU, MINISTER FOR LANDS & PHYSICAL PLANNING

Third Applicant

And:

TOKA ENTERPRISES LIMITED

Respondent

Waigani: Injia, CJ

2013: 29th November

JUDICIAL REVIEW – Leave to seek review – First application under new Rules of Court – Jurisdiction – Exercise of discretion – Principles – Application of principles to facts – Application granted – Constitution, s155 (2)(b); Supreme Court Rules 2012, O 5 rr 1, 2 & 3.

Counsel

A Manase, for the Applicants

S Guava, for the Respondents

29th November, 2013

1. INJIA, CJ: This is a contested application for leave to apply for review of several decisions of the National Court following the applicant’s failure to institute appeals against those decisions. The application is made under O 5 rr 1 & 3 of the Supreme Court Rules 2012 (SCR).

2. This is the first application to come before me under the new Supreme Court Rules 2012. On 19 December 2012, the Judges promulgated a new set of rules of court governing the practice and procedure of the Supreme Court. The new rules, contained a consolidation of the then existing Supreme Court Rules 1987 and subsequent amendments made to those rules.

3. By way of background, prior to 19 December 2012, the SCR contained provisions for instituting applications for judicial review but no provisions for separate leave for review applications. The case law as it stood then allowed applications for judicial review as of right in cases where a statute barred appeals from decisions of the National Court and that a person aggrieved by that decision had no other way of seeking redress in the Supreme Court. The case law also allowed reviews by leave only where a statute allowed appeals but the right to appeal had been lost. In the case of the latter, the question of leave and the substantive application for review were heard and determined together because there were no separate procedures for leave applications.

4. In 2002, the SCR was amended to require separate application for leave for review with regard to review of decisions of the National Court in an election petition brought under the Organic Law on National and Local-Level Government Elections. The principles governing the exercise of discretion on leave are established: see Jurvie v Oveyara (2008) SC935.

5. With regard to application for leave for review in other matters, SCR 2012, Order 5 Rules 1, 2 and 3 made provision for separate application and determination on the question of leave. That rule is 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. An application for leave by a prisoner who is not legally aided may be made in form 2 Schedule Two.

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

6. 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”

7. The majority found that the delay by 2 years in bringing the application was found to be unreasonable and unsatisfactory and that notwithstanding the delay, 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.”

8. Counsel for the applicants referred to a number of other cases which discuss the criteria for grant of leave, however those cases do not say anything different to the criteria canvassed by the majority in Lae Bottling Industries Ltd case: 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.

9. There are two other additional criteria that, in my view, are also relevant in an application for leave. 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.

10. Secondly, an applicant must have 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.

11. I agree with Mr Manase that the second criteria in the Lae Bottling case may also be approached from the perspective of some serious legal or factual issues that are raised from some patent error on the Court’s part that is manifest on the face of the record, that stands to produce grave or substantial injustice.

12. I also accept submissions of counsel for the respondent that in considering the question of leave, the Court is not considering the merits of the issues raised. That task rests with the full Court that is determining the substantive application for review.

13. I apply those principles to the circumstances of the present case under the various criteria set out in the Lae Bottling case, which I have expounded upon, as follows:

. Locus standi

. Satisfactory explanation for default in bringing appeal

. Satisfactory explanation for delay in bring application for leave for

Review

. 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

. Interests of justice

14. But first it is necessary to identify the decisions of the Court the subject of the application. Those are identified in the leave application as follows:

(a) Judgment of Justice Lay given on 7 June 2007, in National Court judicial proceedings OS No 240 of 2007, granting the applicant in that...