SC2158

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 12 OF 2021

BETWEEN:
RAPHEAL NUL YOPA
trading as NIMKAI TRADING
First Applicant

AND:
XU RONGHUA
in his capacity as the Managing Director and
sole owner of XU RONGHUA TRADING
Second Applicant

AND:
XU RONGHUA TRADING
Third Applicant

AND:
SUPERTANG TRADING LIMITED
Respondent

Waigani: Hartshorn J.
2021: 7th and 10th September

Application for leave to review – s. 155(2)(b) Constitution

Cases Cited:       

Avia Aihi v. The State (No. 2) [1982] PNGLR 44
Application by Anderson Agiru (2002) SC686
Application by Herman Leahy (2006) SC855
Application by John Maddison and Bank of South Pacific Ltd (2009) SC984 
Rangip v. Loko (2009) N3577
Alphonse Tay v. Newcombe Gerau (2011) SC1097
Benjamin Sengi v. The State (2015) SC1425
Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568 
Nelulu Land Group Inc. v. Rimbunan Hijau (PNG) Ltd (2018) N7994
Elizabeth Kavi v. Australia and New Zealand Bank Ltd (2020) SC1951

Counsel:

Mr. K. Sino, for the Applicants
Ms. R. Kot, for the Respondent

10th September, 2021

1. HARTSHORN J: This is a decision on a contested application for leave to review a decision of the National Court pursuant to s.155(2)(b) Constitution.

Background

2. This is a dispute concerning competing purported leases given to the respondent and to the second and third applicants, of land owned by the first applicant in Kundiawa. A National Court proceeding commenced by the respondent was dismissed as an abuse of process. The third applicant sought damages for losses incurred pursuant to an undertaking as to damages given by the respondent. Following a trial to assess damages the application of the third applicant was dismissed. It is this decision which is sought to be reviewed (Decision).

3. The Decision was delivered on 24th July 2020. Leave is required as the right of appeal was not exercised in the time permitted by statute: Order 5(1) Supreme Court Rules and Avia Aihi v. The State (No. 2) [1982] PNGLR 44; Application by Anderson Agiru (2002) SC686; Application by Herman Leahy (2006) SC855; Application by John Maddison and Bank of South Pacific Ltd (2009) SC984; Alphonse Tay v. Newcombe Gerau (2011) SC1097 and Benjamin Sengi v. The State (2015) SC1425.
4. Where a right of appeal has not been exercised, three criteria must be satisfied before leave can be granted (I refer to the cases cited above). These are:
a)	it is in the interests of justice to grant leave; and
b)	there are cogent and convincing reasons and exceptional circumstances, eg. some substantial injustice is manifest or the case is of special gravity; and
c)	there are clear legal grounds meriting a review of the decision.

5. Recently in Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568, Injia CJ (as he then was) said at [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."

Consideration
6. In determining whether there are cogent and convincing reasons, the first consideration is the reason for not filing an appeal within time. 
7. The evidence given by the second applicant is that he was not promptly informed by his lawyer of the Decision and was informed by the receptionist at the Public Solicitor’s Office in December 2020 that their case for assessment of damages was dismissed on 24th July 2020. Further, the second applicant attempted to check with his lawyer twice in October 2020, he learned that his lawyer was no longer at the Public Solicitor’s office, he engaged their current lawyer on 6th April 2021 and the National Court registry at Kundiawa opened after a covid19 related closure on 19th April 2021. There is no evidence apart from that given by the second applicant. There is no evidence from the lawyer who was representing the second and third applicants at the relevant time or from anyone else at the Public Solicitor’s Office. Counsel for the applicant submitted that it was reasonable to conclude that the then lawyer for the second and third applicants was present in court when the Decision was delivered.
8. In my view, a reasonable explanation for not filing an appeal in time has not been given. The hearing on an assessment of damages was on 4th June 2020, yet the second applicant only gives evidence of attempting to check with his lawyer in October 2020. The second applicant could have checked either by phone or personal attendance at the Public Solicitor’s Office or the National Court Registry in Kundiawa at least once a month from when the hearing occurred. There is no evidence of this. Further, the lawyer for the applicants should have notified them of the Decision. To the extent that he did not, the applicants may have recourse against him for professional negligence. 
9. The negligence of a lawyer may not be relied upon as a reason for permitting a review to proceed because an appeal was not filed in time. I refer in this regard to Nelulu Land Group Inc. v. Rimbunan Hijau (PNG) Ltd (2018) N7994 and Rangip v. Loko (2009) N3577 which were cited with approval in Elizabeth Kavi v. Australia and New Zealand Bank Ltd (2020) SC1951. In these judgments it was stated that the negligence of a lawyer is not a good reason to allow a proceeding that should otherwise be dismissed, to continue. The explanation given for not filing an appeal in time, such that it is, is not reasonable.
10. The next consideration is whether there has been any delay in filing the application for leave to review and if so, has a reasonable explanation for this been given. In addition to the reasons given for not filing an appeal in time, the second applicant gives evidence that he could not engage his previous lawyer, there are no other private lawyers in Kundiawa and the National Court Registry was closed for a period because of covid19. 
11. As to whether there has been any delay, it took over eight months after the expiration of the statutory period of 40 days within which an appeal could have been filed for the applicants to file their application for leave to review. In my view this is clear delay as it constitutes about six times the statutory appeal period of 40 days. A reasonable explanation is required for this delay.
12. The explanations given for the delay are not reasonable. The applicants could have approached the Public Solicitor to represent them, particularly given that their previous lawyer from the Public Solicitor’s office had allegedly failed to properly represent them in the National Court. There is no evidence in regard to this. Moreover, the applicants could have retained a lawyer from a different area to represent them if they were not able to obtain the services of a lawyer in Kundiawa. As to the National Court registry being closed, there is no specific evidence of this. Even if it was closed, it would only have been closed for about one month.
13. Having found that a reasonable explanation for not filing an appeal within time and for the period of time taken for the leave application to be filed has not been given, as occurred in Kalu's case (supra), this court may nevertheless consider whether there, "are exceptional circumstances showing a manifestation of substantial injustice that gives rise to serious issues of fact or law that warrants a full review of a judgment": Kalu's case (supra) at [5]; and further, whether it is in the interests of justice that a review of the Decision is warranted.
14. In considering the merits of the case sought to be argued by the applicants, from a quick perusal of the proposed grounds of the review there does not appear to be merit in the arguments that there was sufficient admissible evidence before the court to enable the primary judge to make an award of damages. The evidence given appears to have consisted of invoices and not receipts. I will proceed however, on the basis that the applicants have an arguable case.
15. Following a consideration of the documentation before the court and the submissions made, notwithstanding that the applicants may have an arguable case, I am not satisfied that in this instance there are any exceptional circumstances or the specific exceptional circumstances as described by Injia CJ (as he then was) in Kalu's case (supra). This is not a test case and no particular circumstances exist which require this court's determination on a new or novel point of law. 
16. I am also satisfied that it has not been shown to be and that it is not, in the interests of justice that leave to review be granted. Consequently, for the above reasons, this application is dismissed.
Orders
17.   The Court orders that:
a)	This application for leave to review is dismissed;
b)	The applicants shall pay the respondent's costs of and incidental to the said application to be taxed if not otherwise agreed.
__________________________________________________________________
Sino & Company Lawyers: Lawyers for the Applicants                                       
Av Ross & Co. Lawyers: Lawyers for the Respondent