Leslie Amos Tagan v Anna Nawara and Philomena Piamari Nawara and Australia and New Zealand Banking Group (PNG) Limited and General Manager, National Housing Corporation and the Registrar of Titles and The Independent State of Papua New Guinea (2015) SC1443

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 10 July 2015
• Citation: (2015) SC1443
• Docket Number: SC REV NO 19 of 2015
• Year: 2015

Full Title: SC REV NO 19 of 2015; Leslie Amos Tagan v Anna Nawara and Philomena Piamari Nawara and Australia and New Zealand Banking Group (PNG) Limited and General Manager, National Housing Corporation and the Registrar of Titles and The Independent State of Papua New Guinea (2015) SC1443

Supreme Court: Makail J

Judgment Delivered: 10 July 2015

SUPREME COURT—PRACTICE & PROCEDURE—Application for leave to review—Review of decision of National Court to dismiss application for judicial review—Principles of leave considered—Exceptional circumstances—Satisfactory explanation for default—Failure to file appeal within 40 days—Arguable case—Constitution—s155(2)(b).

Cases cited:

Avia Aihi v. The State [1982] PNGLR 44

Jeffery Balakau v. Ombudsman Commission [1996] PNGLR 346; (1996) SC529

Danny Sunu v. The State [1984] PNGLR 305

The State v. Colbert [1988] PNGLR 138

Joseph Kupo v. Steven Raphael (2004) SC751

Martha Limitopa v. The State [1988-89] PNGLR 364

Leo Duque v. Avia Andrew Paru [1997] PNGLR 378

Walter Schnaubelt v. Hon. Byron Chan & Electoral Commission (2012) N4791

Micky Akai v. Warner Shand Lawyers (2014) SC1393

The Papua Club Incorporated v. Nasaum Holdings Limited (No. 2) (2004) N2603

The Papua Club Incorporated v. Nasaum Holdings Limited (2005) SC812

Koitachi Limited v. Walter Schnaubelt (2007) SC870

Mudge v. Secretary for Lands [1985] PNGLR 387

Eric Kiso v. Bennie Otoa & Ken Wutnalom (2013) SC1222

Paul Asakusa v. Andrew Kumbakor (2008) N3308

1. BY THE COURT: This is an application for leave to review a decision of the National Court dismissing an application for judicial review pursuant to Section 155(2)(b) of the Constitution. The Applicant had lost his right to appeal against the decision of the National Court which was given on 20th February 2015 when the statutory time limit of 40 days expired on 30th March 2015. That is not to say that he did not exercise that right. He did when he filed an appeal by using a Notice of Appeal in accordance with Form 8 (Order 7, rule 9(e) of the Supreme Court Rules (SCR)) instead of Notice of Motion under Form 15 (Order 10, rule 3(c) of the SCR). That Notice of Appeal was judged to be incompetent by the Supreme Court and was dismissed. By that time, 40 days had expired.

2. The power of the Supreme Court under Section 155(2)(b) of the Constitution is discretionary but the test applied in deciding whether to grant leave to an Applicant who has lost the right of appeal is higher than the one applied in the case of leave to appeal under Section 14 of the Supreme Court Act. Leave will only be granted in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity: Avia Aihi v. The State [1982] PNGLR 44.

3. There must be convincing reasons why leave should be granted, an explanation for the delay in filing the appeal in time and it must be shown that there is an arguable case on the merits: Avia Aihi (supra) and adopted in Jeffery Balakau v. Ombudsman Commission [1996] PNGLR 346; (1996) SC529.

4. It was contended on behalf of the Applicant that the default in complying with the statutory time limit of 40 days to file an appeal can be satisfactorily explained. The explanation was...