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Napu v Andrias [2018] PGSC 110; SC2073 (20 December 2018)

SC2073

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV 99 OF 2018

APPLICATION FOR REVIEW PURSUANT
TO CONSTITUTION, SECTION 155(2)(b)

BETWEEN:

JOHN NAPU
Applicant

AND:
JOHN ANDRIAS
as the Secretary of the Department
of Trade, Commerce & Industry
First Respondent

AND:
DR. PHILIP KEREME
in his capacity as the CHAIRMAN OF THE
PUBLIC SERVICE COMMISSION
Second Respondent

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Respondent

Waigani: Hartshorn J,
2018: 19^th & 20^th December

SUPREME COURT – practice and procedure - Application for leave to review

Cases Cited:
Avia Aihi v. The State (No.1) [1982] 81
Application by Anderson Agiru (2002) SC686
Application by Herman Leahy (2006) SC855
Alphonse Tay v. Newcombe Gerau (2011) SC1097
Benjamin Sengi v. The State (2014) SC1425
Larson Yalo v. The State (2018) SC1669

Counsel:

Mr. J. Napu in person

20^th December, 2018

1. HARTSHORN J: This is a decision on an application for leave to review a decision of the National Court. It is made pursuant to s. 155(2)(b) Constitution. The decision of the National Court in respect of which leave to review is sought, is a purported decision to remove the applicant, the second respondent in the National Court proceeding, from the National Court proceeding. The decision was made on 27^th September 2018 (National Court decision).

2. The applicant did not exercise his right to appeal or to seek leave to appeal the National Court decision within 40 days, hence the application pursuant to s.155(2)(b) Constitution. Where a right of appeal has not been exercised, three criteria must be satisfied before leave may be granted. I refer to the decisions of Avia Aihi v. The State (No.1) [1982] 81; Application by Anderson Agiru (2002) SC686; Application by Herman Leahy (2006) SC855; Alphonse Tay v. Newcombe Gerau (2011) SC1097; Benjamin Sengi v. The State (2014) SC1425; and Larson Yalo v. The State (2018) SC1669 in this regard.

3. The three criteria are that:

a) it is in the interests of justice to grant leave;

b) there are cogent and convincing reasons and exceptional circumstances, eg. some substantial injustice is manifest or the case is of special gravity;

c) there are clear legal grounds meriting a review of the decision.

4. In this instance, the applicant unsuccessfully sought to set aside the National Court decision, in the National Court. He has however, not appealed the unsuccessful set aside decision. In essence, the applicant decided that he would have more chance of success in the Supreme Court if he challenged the National Court decision rather than the unsuccessful set aside decision.

5. The only other reason given by the applicant for not appealing the National Court decision is that he fell ill with flu. Apart from his deposition, there is no evidence of this.

6. It is the case that the applicant is still within time to appeal the unsuccessful setting aside decision. Consequently, no prejudice will be occasioned by him if this application for leave is refused. In any event, in my view, the applicant has failed to properly demonstrate that any of the three criteria that must be satisfied before leave may be granted, are satisfied in this instance.

7. Consequently, this proceeding is dismissed. No order is made as to costs.
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Napu & Company Lawyers: Lawyers for the Applicant