John Kolokolo v Commissioner of Police and The Independent State of Papua New Guinea (2014) SC1607

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ, Davani & Kassman JJ
• Judgment Date: 17 October 2014
• Court: Supreme Court
• Citation: (2014) SC1607
• Docket Number: SCM NO. 12 OF 2000
• Year: 2014
• Judgement Number: SC1607

Full Title: SCM NO. 12 OF 2000; John Kolokolo v Commissioner of Police and The Independent State of Papua New Guinea (2014) SC1607

Supreme Court: Injia CJ, Davani & Kassman JJ

Judgment Delivered: 17 October 2014

SC1607

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 12 OF 2000

BETWEEN:

JOHN KOLOKOLO

Appellant

AND:

COMMISSIONER OF POLICE

First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Waigani: Injia CJ, Davani & Kassman JJ

2014: October 17th

ADMINISTRATIVE LAW - Judicial Review proceedings – National Court Rules, Order 16 -Appeal from refusal of leave to apply for judicial review - Whether discretion exercised erroneously when application for leave for judicial review was filed 2 days out of time - National Court Rules Order 16 Rules 3 and 4(2).

Cases cited in the judgment:

Papua New Guinea Cases cited:

Small Business Development Corporation v. Totamu [2010] PGSC 44; SC1054 (8 June 2010)

Sao Gabi & The State v Kasup Nate & Ors (2006)

Irene Davis v Karipe Pitzz (Secretary for Lands and Physical Planning) and The Independent State of Papua New Guinea [1988–89] PNGLR 143 (N703)

Poka Biki [1995] PNGLR 336 (N1299)
Evangelical Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276 (N1317)

Silas Mareha v The Chairman—Redundancy Monitoring Committee, The Secretary for Department of Works, The Secretary for Department of Personnel Management and The Independent State of Papua New Guinea [1999] PNGLR 517 (N1895)

New Zealand Insurance Co Ltd v. Chief Collector of Taxes [1988-89] PNGLR 522 (SC376)

Overseas Cases cited:

Queen v. Brown [1963] S.A.S.R. 190 at 191

Legislation cited:

National Court Rules Order 16, Rule 4(2) and Order 2 Rule 3(1)

Supreme Court Act c.37 Section 17

Counsel:

L Mamu and B Geita, for the Appellant

No appearance for the Respondents

17th October, 2014

1. INJIA CJ: This appeal was heard ex parte after the Solicitor-General who was to have appeared for the respondents at the hearing failed to attend the hearing.

2. The appeal arises from a decision of the National Court refusing the appellant leave to apply for judicial review of a decision made by the first respondent to dismiss him from the Police Force.

3. There is only one ground of appeal and it is in the following terms:

“ That the learned trial judge was wrong in holding that there was undue delay when he said “... the delay in filing an application for leave and for review is so astounding that I must refuse the application”, thereby dismissing the Appellant’s application whereas the evidence on record shows that the Appellant’s application for leave for judicial review was filed only two (2) days out of four (4) months prescribed under Order 16 Rule 4(2) of the National Court Rules 1983.”

4. The issue before us is whether the trial judge erred in the exercise of his judicial discretion when he found that the delay in bringing the application for leave for judicial review was “so astounding” when the facts before the Court established that the application was filed only two (2) days out of time.

5. The material facts relied upon to support the application were contained in the Statement in Support of the Application for Leave (the Statement) and in the appellant’s affidavit. On 30th September 1999, the appellant was dismissed from the Police Force on disciplinary grounds. Exactly 4 months 2 days later, on 1 February 2000, he filed an Originating Summons in the National Court, seeking leave to apply for judicial review of the decision. More than 8 months later, on 13 October 2000, the application was heard and dismissed.

6. The trial judge gave very brief reasons for his decision as follows:

“There were two decisions that I was to deliver yesterday in the motions but did not so I am going to deliver them now. All right, call the first one.

“The applicant was dismissed from the police force on 23 March 1998 when he was found guilty of two disciplinary offences. The circumstances constituting the charges were carefully submitted to the court. Strictly the charges could be questionable however the purpose of review is on the validity of the process used on dealing with the applicant. On the evidence, it did not seem the charges were laid and responses were required in an ordinary manner.

Be that as it may, the delay in filing an application for leave and for review is so astounding that I must refuse the application. I order that the application be dismissed”.

7. It is clear from the trial judge’s reasons for decision that the application was dismissed for undue delay in filing the application and not on the merits of the application. It is also clear that the trial judge was referring to the date on which the application for leave for judicial review was filed and not the date on which the application for leave was heard.

8. I accept the appellant’s submission that clearly, the trial judge’s discretion was based on a misapprehension of the facts pertaining to the date on which the application was filed. The undisputed evidence and facts were that the application for leave was filed only 2 days outside of the 4 months time period allowed to bring such application by O 16 r 4 (2) of the National Court Rules. It is clear that the judgment was delayed and rushed. Consequently, the trial judge failed to consider the evidence before him with regard to the date on which the application for leave was filed after the appellant was dismissed. The trial Judge also failed to consider the full merits of the application for leave. For these reasons, I am satisfied that the discretion was wrongly exercised.

9. An important point has arisen with regard to the undue delay in prosecuting this appeal since its filing almost 13 years ago. The appellant’s counsel anticipated the issue might arise and addressed this point in his written submissions. The appellant also explained the delay in his affidavit.

10. It is long held that an appeal must be prosecuted with due diligence and without undue or inordinate delay. There is duty on the appellant to prosecute the appeal promptly and with due diligence. It is in the Court’s discretion to dismiss the appeal for want of prosecution for those reasons. That discretion may be exercised on application by a respondent (SCR, O 7 r 48; O 13 r 16 (1)(a)); on referral by the Registrar (SCR, O 13 r 16 (1) (b)); on referral by the Registrar under s 11 of the Supreme Court Act (SCR, O 13 R 16 (1)(d)); or, of the Court’s own motion (SCR, O 13 r 16 (c )). The question whether an appeal should be dismissed for want of prosecution under either of these four procedural options is a threshold point, quiet distinct from the merits of the appeal, that falls to be considered and determined before a hearing on the merits of the appeal. The matters to be considered with regard to the exercise of discretion on dismissal of an appeal for want of prosecution have little or nothing to do with the merits of the appeal and they should not be considered with the merits of the appeal as they tend to cloud the merits of the appeal under consideration.

11. In the case before us, the question of undue delay in prosecuting the appeal was argued by the appellant’s counsel towards the concluding part of his submissions. For the reasons I have alluded to above, the question does not arise for our consideration.

12. For the foregoing reasons, I would allow the appeal and remit the matter to the National Court for a rehearing of the leave application. Amongst other matters to be considered by the Court below, the question of delay in bringing such application may also involve a consideration of the long delay in prosecuting this appeal: National Court Rules, O 16 r 4(1).

13. I propose the following orders:

(1) The appeal is allowed.

(2) The decision of the National Court made on13th October, 2000 is quashed.

(3) The matter is remitted to the National Court for a re-hearing of the application for leave to apply for judicial review.

(4) Parties bear their own costs of the appeal.

14. DAVANI. J: I have read the opinions of the Chief Justice and his Honor, Justice Kassman and agree that the appeal ought to be upheld. I wish to add a few observations which I consider pertinent.

15. The facts of the appeal are set out in the Chief Justice and Justice Kassman’s opinion, so I need not reiterate those facts.

16. In relation to the appellant’s reliefs sought, the Notice of Motion filed on 22nd November, 2000 by his lawyers, seeks orders that the trial Judge’s decision of 13th October, 2000 be quashed and that leave for Judicial Review be granted on the basis that the trial Judge erred in his findings in relation to delay when he refused the application for leave for Judicial Review and reasoned that the delay in filing an application for leave and for review was so “astounding” that he must refuse the application.

17. It is clear from the trial Judge’s reasons delivered on 13th October, 2000, that not only were they very brief and lacking in substance, but they...