Southern Highlands Provincial Government v Ronald Kalu

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ
• Judgment Date: 01 August 2016
• Citation: (2016) SC1568
• Court: Supreme Court
• Year: 2016
• Judgement Number: SC1568

Full : SCREV No 23 of 2014; Southern Highlands Provincial Government v Ronald Kalu (2016) SC1568

Supreme Court: Injia CJ

Judgment Delivered: 1 August 2016

SC1568

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCREV No.23 OF 2014

BETWEEN

SOUTHERN HIGHLANDS PROVINCIALGOVERNMENT

Applicant

AND

RONALD KALU

Respondent

Waigani: Injia CJ

2016: 1st August

APPLICATION FOR LEAVE to review summary judgment -Action for breach of employment contract - Deed of Settlement for damages in the sum of K800,000 relied upon to support claim for liquidated sum - Summary judgment entered for liquidated sum - Criteria for grant of leave for review - Application to facts - Whether leave for review should be granted - Application dismissed - Constitution, s155 (2)(b), Supreme Court Orders, O 5 r 1

Cases cited in the judgment:

Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120

Luke Marano v Jack Nouari (2013) SC 1307

NCDC v Peter Yama Security Services Pty Ltd [2003] SC707

State v Toka Enterprises Ltd (2013) SC1266

Counsel:

A Maribu, for the Applicant

L Kari, for the Respondent

1st August, 2016

1. INJIA CJ: This is an application for leave to apply for judicial review of a summary judgment given by the National Court on 3 June 2011. The application is brought under s 155(2)(b) of the Constitution and O 5 r 1 of the Supreme Court Rules 2012.

Preliminary issues:

2. The respondent raised several preliminary issues as follows:

(1) The form of the application is a mixture of Form 5 and 5A of the Supreme Court Rules and therefore defective and incompetent.

(2) Some of the grounds contained in the application for leave have no basis in law and are an abuse of court process.

(3) The applicant should have filed an application in the National Court under the slip rule principle. The leave application is incompetent for this reason.

(4) Mr Ungia Kembo, the Acting Provincial Administrator of Southern Highlands Province lacks standing to bring the application. There is no evidence that the Southern Highlands Provincial Government (SHPG) authorised Mr Kembo to bring this application. The judgment is based on a Deed of Settlement signed by Mr Kembo's predecessor which is binding on Mr Kembo.

3. The leave application is properly before this court. An application for leave for judicial review is not in Form 5A. Form 5A relates an application for leave for review under Order 5 Division 5 (Election Petition Reviews). An application for leave for review resembles the form of an application for leave to appeal with appropriate modification: see O 5 r 1. The leave application in the present case complies with that form. It correctly seeks leave to review the judgment based on errors allegedly committed by the trial court; it is not based on any slip that may have been committed by that court.

4. Mr Kembo has the necessary standing to bring this application on behalf of his office and that of SHP of which he is its administrative head. His predecessor, in his official capacity, was a signatory to the deed of settlement. The Provincial administrator was named as a party in WS 1563 of 2002 and WS 184 of 2010, under which the decision the subject of this application was made. For these reasons I dismiss the preliminary points raised by the respondent.

Leave application: principles

5. The criteria for grant of leave for review is settled in various decisions of this Court: Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120, State v Toka Enterprises Ltd (2013) SC1266, Luke Marano v Jack Nouari (2013) SC 1307. The applicant must have standing to bring the application. If the applicant is a party in the proceedings of the court below from which the judgment under review was given, the question of standing does not arise. The applicant must offer a reasonable explanation as to why an appeal against the judgment was not filed within time. The application for leave for review must not be delayed. If there has been a delay in lodging the application, a reasonable explanation must be given. The application must be prosecuted promptly. If there has been a delay in prosecuting the application, a reasonable explanation must be offered. If the court finds that there has been a delay and no reasonable explanation has been offered for the delay in lodging and prosecuting the application, the court may, nonetheless, grant leave for review if there are exceptional circumstances showing manifestation of substantial injustice that give rise to serious issues of facts or law that warrants a full review of the judgment. It is also necessary for the applicant to demonstrate that it is in the interest of justice to warrant a review of the judgment.

Applicant's arguments

6. The applicant argues that it was a party in the proceedings in the court below from which the application arises and has standing to bring the application.

7. The applicant admits no appeal was filed, that there has been undue delay in filing the application for leave to review and there has been delay in prosecuting the leave application. Those have been explained. The application was filed on 11 September 2014, more than three (3) years after the judgment was given, and moved before this court, on 5 July 2016, over 1 year 9 months after filing it. The applicant's explanation is that the respondent did not serve the judgement on the applicant, instead he served the orders and certificate of judgment on the Solicitor General in Port Moresby. When the judgment came to the applicant's attention, the applicant sought proper legal advice on the next course of action which took time and as a result the application for leave could not be filed earlier. The application could not be moved promptly because it took time to locate the respondent to be served the application for leave. When the respondent could not be contacted, an application made and granted by this Court for substituted service on 7 October 2015 and service was effected.

8. The respondent sued for damages for breach of employment contract entered into between himself and Southern Highlands Credit Guarantee Scheme Limited (SHCGS). The applicant was not a party to that contract.

9. SHCGS was not registered as an incorporated company with the Investment Promotion Authority and lacked legal capacity to enter into the contract.

10. The Deed of Settlement relied upon by the respondent and the court to support the summary judgment was illegal for reasons set in the sub-paragraphs (8) and (9) above: NCDC v Peter Yama Security Services Pty Ltd [2003] SC707. Besides, there was no evidence put before the Court that the contract had been performed by the respondent to justify summary judgment for the amount awarded.

11. Summary judgment was not available under NCR, O 12 r 38 because the claim was not for a liquidated sum for which summary judgment in the liquidated sum is not available.

12. There were procedural breaches which if considered by the Court, summary judgments would not have been granted. The State was joined by the respondent as a party very late in the proceedings, without leave, at the time the application for summary judgment was moved, and without giving the mandatory s 4 notice under the Claims By and Against the State Act.

13. The public interest requires the judgment to be reviewed.

14. In these circumstances, there has occurred a substantial manifestation of injustice and it is in the interest of justice that leave should be granted for a full review of the judgment.

Respondent's arguments

15. The explanations offered by the applicant for failing to file the appeal, delay in filing the application for leave for review and delay in prosecuting the application for leave, are unreasonable. The applicant has waited 19 years to receive his contractual entitlements and even when a judgment has been given, the applicant refuses to satisfy the judgment.

16. A Deed of Settlement was executed by the Provincial Governor and the Provincial Administrator in 2006 to settle the respondent's claim, which is binding on the applicant.

17. The applicant's lawyers have been supplied with a copy of the certificate of incorporation of SHCGS, yet it continues to maintain to this day that SHCGS was not incorporated at the material time.

18. The applicant was served with the court documents and they failed to attend court resulting in judgment entered against it.

19. Notice of the claim was given to the Provincial Administrator in accordance with the Claims By and Against the State Act.

20. This was a liquidated claim in that the deed of settlement for the payment of a specific sum (K800, 000) was pleaded in the statement of claim and the summary judgment for that amount was properly given.

21. Although SHPG was not a party to the Contract of Employment, the applicant at no time disputed the capacity of the Provincial Governor and the Provincial Administrator to sign the Deed and their standing to represent the SHPG in the two proceedings brought in the National Court. They, at no time, disputed the ownership of SHCGS by SHPG. In WS No. 1563 of 2002, the...