TST Holdings Pty Ltd and Tin Siew Tan v Tom Pelis and Pelton Investments Pty Limited (1997) SC534

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Amet CJ, Kapi DCJ, Los J
• Judgment Date: 27 November 1997
• Citation: (1997) SC534
• Judgment Number: SC534
• Year: 1997
• Docket Number: SCR No 35 of 1996: Review Pursuant to s155(2)(b) and s155(4) of the Constitution

Supreme Court: Amet CJ, Kapi DCJ, Los J

Judgment Delivered: 27 November 1997

SC534

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SC REV NO. 35 OF 1996

Review Pursuant to Section 155(2)(B) and 155(4) of the Constitution

BETWEEN:

T S T HOLDINGS PTY LTD

First Applicant

AND:

TIN SIEW TAN

Second Applicant

AND:

TOM PELIS

First Respondent

AND:

PELTON INVESTMENTS PTY LIMITED

Second Respondent

Waigani : Amet CJ, Kapi DCJ & Los J

27 November 1977

Constitutional Review — s 155(4) — Application to review decision of Supreme Court — No jurisdictional authority.

Constitutional Review — s 155(2)(b) — Application to review National Court decision — Supreme Appeal struck out for want of prosecution.

Right to invoke discretionary jurisdiction affirmed — Leave may be granted on convincing reasons and satisfactory explanations being given for non-compliance with statutory requirements and demonstration of an arguable case on the merits.

G Shepperd, for the Respondents.

J F Aisa, for the Applicant.

APPLICATION

This is an application, purportedly made pursuant to Constitution s.155 (2) and (4), seeking to review an earlier decision of the Supreme Court, made on 12 July, 1996 and the earlier related National Court decision made in March 1995.

The National Court decision of March 1995 was appealed against by the applicants TST Holdings Pty Limited and Tim Siew Tan. That appeal was dismissed for want of Prosecution, by the Supreme Court on 12 July 1996.

This application, firstly purportedly pursuant to Constitution s.155 (4), seeks a review of the Supreme Court decision on the following grounds:

I. The Supreme Court decision was made in want or excess of jurisdiction, there was an error on the face of the record and or the decision was unreasonable under the Wednesbury Principles because:

1. The applicant for the dismissal did not disclose any proper grounds upon which the jurisdiction of the Court to exercise its discretion to strike out for want of prosecution was enlivened.

2. The discretion to strike out the applicant's appeal was not exercised judicially in accordance with the principles applicable to the exercise of such discretion.

3. The Court took into account irrelevant matters in arriving at its decision.

4. The Court failed to take into account relevant matters in arriving at its decision.

5. The majority's decision in all the circumstances was unreasonable.

The application seeks the order that the decision of 12 July 1996 be vacated and in substitution thereof it be ordered that the respondents application to strike out the appeal for want of prosecution be dismissed with costs.

Section 155(4) is in the following terms:

"Both the Supreme Court and the National Court have an 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."

This application raises directly the issue as to whether the Supreme Court has jurisdictional authority to review its own earlier decision in the same matter, either by the same panel of justices or a differently constituted panel of justices.

The basis on which the application for review was made pursuant to s.155 (4) is reliance upon Constitution s.41. It was submitted that the decision of the Supreme Court was 'an unlawful act', on the grounds pleaded, within the meaning of s.41 and so an application for review of that decision could be brought under s.155 (4), because no specific machinery provision existed under the constitution for an action under s.41.

Inferentially, it was contended that, because the appeal was dismissed for want of prosecution pursuant to the Supreme Court Act, the right of review pursuant to the Constitution s.155 was still available to be invoked,...