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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCR NO 55 0F 2004
SLIP RULE APPLICATION
REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(b)
OF A JUDICIAL ACT OF THE NATIONAL COURT
RE AN ELECTION PETITION
FOR THE TARI-PORI OPEN ELECTORATE
JAMES MARABE
Applicant
TOM TOMIAPE
First Respondent
ELECTORAL COMMISSION (NO 2)
Second Respondent
Waigani: Hinchliffe, Batari & Cannings JJ
2006: 30 November
2007: 2 May
RULING
SUPREME COURT – jurisdiction to reopen previous decision of Supreme Court – slip rule – whether jurisdiction exists if previous decision made under Constitution, Section 155(2)(b) – principles to apply when determining whether to exercise discretion to reopen – whether previous decision made under a misapprehension of fact or law.
The applicant was runner-up to the first respondent in the 2003 supplementary election for the Tari-Pori Open electorate. The applicant challenged the result of the election by an election petition in the National Court, which dismissed the petition. He then applied for review of the National Court decision by the Supreme Court, relying on 11 grounds. The Supreme Court dismissed each ground of review and dismissed the whole review. He then applied to the Supreme Court to reopen its decision, under the slip rule, arguing that it had misapprehended the law and/or facts in two of the 11 grounds of review. Therefore its decision to dismiss the whole review was made in error. The second respondent, the Electoral Commission, objected to the competency of the application. This is a ruling on both the slip rule application and the objection.
Held:
(1) The Supreme Court has power under the underlying law to hear slip rule applications and set aside its own decisions irrespective of the jurisdiction under which the original decision was made.
(2) Seven general principles govern determination of a slip rule application:
(a) there is a substantial public interest in the finality of litigation;
(b) on the other hand, any injustice should be corrected;
(c) the court must have proceeded on a misapprehension of fact or law;
(d) the misapprehension must not be of the applicant’s making;
(e) the purpose is not to allow rehashing of arguments already raised;
(f) the purpose is not to allow new arguments that could have been put to the court before;
(g) the court must, before setting aside its previous decision, be satisfied that it made a clear and manifest, not an arguable, error of law or fact on a critical issue.
(3) In the present case the application was to set aside a decision the Supreme Court made in the exercise of its review jurisdiction under Section 155(2)(b) of the Constitution. The application was properly before the Court and the objection to competency was refused.
(4) All of the alleged misapprehensions of law and/or fact relied on in support of the slip rule application were the subject of argument at the hearing of the substantive review. The applicant’s arguments were fully considered for the purposes of the court’s original decision.
(5) The application was therefore a rehashing of arguments already raised.
(6) The court was not satisfied that it made any mistakes of law or fact in its original decision, let alone clear and manifest errors on any critical issue. Accordingly the slip rule application was dismissed.
Cases cited
Papua New Guinea Cases
James Marabe v Tom Tomiape and Andrew Trawen, Acting Electoral Commissioner EP No 75 of 2003, 20.10.04
Peter Peipul Ipu v Pila Niningi and The Electoral Commission (1998) SC580
SCR No 11 of 1999; Re Lambu v Ipatas, Konu and the Electoral Commission (1999) SC645
SCR No 22 of 1999; Re Polye v Sauk and The Electoral Commission (1999) SC643, 24.11.99
SCR No 23 of 2004; Re Nomination of Governor-General, Application by Sir Pato Kakaraya (2004) SC752
SCR No 3 of 1999; Special Reference by the Ombudsman Commission under Section 19 of the Constitution, Re Calling of Meetings of the
Parliament (No 2), 23.02.01
SCR No 54 of 1998; Re Chan v Apelis and The Electoral Commission (No 2) (1999) SC591
SCR No 55 of 2004; Marabe v Tomiape and Electoral Commission (2006) SC827)
SCR No 8 of 1999; Re Maino v Avei and The Electoral Commission (2000) SC648
SCR No 8 of 1999; Re Maino v Avei and The Electoral Commission (2000) SC633
Supreme Court Review No 4 of 1990; Re Wili Kili Goiya [1991] PNGLR 170
Supreme Court Review Nos 22 and 23 of 2003; Application by Ben Semri and The Electoral Commission (2003) SC723
Wallbank v Minife and The Independent State of Papua New Guinea [1994] PNGLR 78
Overseas Cases
Wentworth v Woollahra Municipal Council [1982] HCA 41; (1981-1982) 149 CLR 672
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 28
University of Wollongong v Metwally (No 2) [1985] 59 ALJR 481
Williams v Spautz (1993) 67 ALJR 388
Autodesk v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
De L v Director-General, NSW Department of Community Services [1997] HCA 14; (1997) 190 CLR 207
Autistic Association of New South Wales v Dodson [1999] FCA 852
APPLICATION
This was an application to reopen a previous decision of the Supreme Court under the slip rule principle.
Counsel
R Leo, for the applicant
D Kop, for the 1st respondent
A Kongri, for the 2nd respondent
1. BY THE COURT: This is a ruling on a slip rule application. We have already made a decision on a fully argued matter that came before us and one of the parties has come back, asking us to reopen our decision as he says it was based on misapprehensions about various issues of fact and law. Can that be done? Can a party that has lost a case come back to the court that made the decision and argue that the court made the wrong decision? Can a court set aside a decision that it has already made? Yes is the answer to all these questions. But as our ruling on this application will show it is a matter of discretion and the discretion must be exercised carefully and sparingly.
BACKGROUND
2. The person making the slip rule application is the applicant, James Marabe. He was an unsuccessful candidate in the 2003 supplementary election for the Tari-Pori Open electorate. The person who won the election is the first respondent, Tom Tomiape MP. The second respondent is the Electoral Commission.
3. The applicant disputed the election result in an election petition heard by Jalina J in the National Court. His Honour dismissed the petition in its entirety (James Marabe v Tom Tomiape and Andrew Trawen, Acting Electoral Commissioner EP No 75 of 2003, 20.10.04).
4. The applicant then applied to the Supreme Court under Section 155(2)(b) of the Constitution for review of the National Court decision. Numerous grounds were relied on. We were critical of their drafting, occupying five pages of single-spaced text in the review book and being elaborate, repetitious and convoluted. We re-numbered and paraphrased to make them more understandable. As a result of that process we identified 11 grounds of review. On 3 March 2006, we dismissed each of them and therefore the whole review was dismissed (SCR No 55 of 2004, Marabe v Tomiape and Electoral Commission (2006) SC827). Consequently the first respondent remains the sitting member.
5. On 21 March 2006, the applicant made the slip rule application now before us. On 1 November 2006, there was a directions hearing and on 30 November 2006, we heard the application. Neither the applicant nor the respondents took any issue with the way in which we had set out the 11 grounds of review.
6. The applicant takes issue with our determination of only two of the 11 grounds of review: No 1 and No 4. No challenge is made to the other nine grounds.
7. The applicant argues that we dismissed ground No 1 and No 4 due to misapprehensions about issues of fact and law, ie we made slips or mistakes in our treatment of each of those grounds; and if we had not done so the review would have been successful.
8. We will summarise our determination of those two grounds but before doing that there is a preliminary issue to address.
DOES THE SUPREME COURT HAVE JURISDICTION?
9. The second respondent argued that we should not entertain the slip rule application as the decision that the applicant wants re-opened was made under Section 155(2)(b) of the Constitution. It is a special source of jurisdiction conferring inherent power on the Supreme Court to review all judicial acts of the National Court. Section 220 of the Organic Law on National and Local-level Government Elections prohibits appeals from election petition decisions and evinces a clear legislative intention to bring election results to finality as soon as possible. If the Supreme Court were to start entertaining slip rule applications the results of elections would be subject to even greater uncertainty than at present.
10. We appreciate the second respondents’ concern about bringing finality to election results. But, constitutionally, the argument that we have no jurisdiction to entertain this application or that the application is incompetent has no merit.
11. The Supreme Court has inherent power under the underlying law to hear slip rule applications and set aside its own decisions irrespective of the jurisdiction under which the original decision was made. It is the underlying law, which embraces the slip rule as part of the common law, which gives the Supreme Court power to hear such applications and set aside its own decisions in appropriate cases. The power is not conferred by constitutional provisions such as Sections 155(2)(b), 155(3)(d) or 155(4). These issues were addressed in SCR No 3 of 1999, Special Reference by the Ombudsman Commission under Section 19 of the Constitution, Re Calling of Meetings of the Parliament (No 2), 23.02.01 and SCR No 23 of 2004 Re Nomination of Governor-General, Application by Sir Pato Kakaraya (2004) SC752.
12. In SCR No 3 of 1999, an advisory opinion by the Supreme Court under Section 19 of the Constitution was the subject of a slip rule application. In SCR No 23 of 2004 it was a decision by the Supreme Court, in the exercise of original jurisdiction under Section 18 of the Constitution to declare the applicant’s nomination and appointment as Governor-General null and void, that was the subject of a slip rule application.
13. The application in each of those cases was unsuccessful but it was entertained. The Court acknowledged that the slip rule can be invoked in any case irrespective of the jurisdiction under which the decision sought to be reopened was made.
14. As we will demonstrate later in this judgment there have only been two successful slip rule applications made to the Supreme Court. In each case it was a decision of the Supreme Court exercising review jurisdiction under Section 155(2)(b) of the Constitution in an election petition case that was set aside: SCR No 54 of 1998; Re Chan v Apelis and The Electoral Commission (No 2) (1999) SC591 and SCR No 8 of 1999; Re Maino v Avei and the Electoral Commission (2000) SC648.
15. We therefore dismiss the objection to competency of the application.
16. We will now summarise how the two contentious grounds of review were dealt with in our original decision.
GROUND NO 1 OF THE REVIEW
17. Ground No 1 was that the petition Judge failed to take into account admissions at the trial by some of the respondents’ witnesses that the presiding officer tampered with the inner lid of the ballot box and tampered with ballot papers already in the box by opening the inner lid and inserting his leg in the ballot-box contrary to Section 130(1)(e) of the Organic Law on National and Local-level Government Elections (the Organic Law).
Argument
18. Three of the respondent’s witnesses gave evidence that the presiding officer opened the inner lid of the ballot box, inserted his leg into the open ballot box and pressed down the ballot papers. The applicant argued that this was a clear error contrary to Section 130(1)(e) of the Organic Law, which damaged the integrity of the ballot box, resulting in a material error under Section 218(1) of the Organic Law.
19. Section 130(1)(e) of the Organic Law states that polling is to be conducted as follows:
... when a ballot-box is full or no longer required for the polling, or at the end of the polling period for all polling places which he is the presiding officer, which ever first occurs, the presiding officer shall, with the least possible delay, forward the ballot-box for the purposes of scrutiny, and it shall on no account be opened except in accordance with this Law. [Emphasis added]
20. Section 218(1) of the Organic Law states:
... an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.
21. The first ground of the petition alleged errors by the presiding officer by cutting and removing the inner plastic seal tag, opening the lid and tampering with the ballot papers. Therefore the petition Judge should have upheld that ground of the petition.
22. The applicant argued that concessions of fact made at the hearing of the petition meant that it was not open to the petition Judge to disbelieve the evidence presented by the petitioner. There was clear evidence of tampering with the ballot box.
23. The presiding officer’s conduct was a clear error that destroyed the integrity of the ballot box, the applicant argued. The integrity of the ballot-box is the crucial issue. This was the principle reaffirmed by the Supreme Court in Supreme Court Review Nos 22 and 23 of 2003; Application by Ben Semri and The Electoral Commission (2003) SC723. In that case the court held that the failure to affix the inner and outer seals of a ballot-box did not necessarily affect the integrity of the ballot-box. It is necessary to determine all other relevant circumstances to make a determination as to whether the integrity of a ballot-box was adversely affected by an error made by the presiding officer or the returning officer. In Semri the Supreme Court concluded that because the ballot-box was securely fastened with a padlock and there was no suggestion that the padlock had been removed unlawfully, there was no proper basis for questioning its integrity. If there is no evidence of any interference with a ballot-box which gives rise to the question of integrity there is no error in counting the ballot.
24. The applicant argued that the facts of the present case were distinguishable from those in Semri as the presiding officer had admitted to interfering with the ballot-box by opening the inner lid and then interfering with the ballot papers with his leg.
25. The applicant argued that the present case was similar to the circumstances prevailing in Peter Peipul Ipu v Pila Niningi and The Electoral Commission (1998) SC580 in which the Supreme Court (Kapi DCJ, Hinchliffe J, Sheehan J) concluded that extra ballot papers must have been deposited in the ballot-box as there was no outer seal to secure the box and there were votes inside it that were not accounted for.
26. The applicant also relied on Section 122(2) of the Organic Law to support the argument that the integrity of the disputed ballot-box had been irretrievably interfered with by the conduct of the presiding officer. Section 122(2) states:
A ballot-box shall have a cleft in the cover through which the ballot papers may be deposited in the box, and shall be provided with means for securely closing the cleft so that, when the cleft is so closed, no ballot papers or other matters or things can be deposited or placed in the box or withdrawn from it.
Decision
27. We considered the evidence that was before the National Court. We stated that the petition Judge should have made the following findings of fact based on the uncontested evidence:
28. As to the other claims made in the first ground of the petition, we stated that the petition Judge should have said what the allegations were and stated expressly that he rejected them. The allegations were that: the inner plastic seal tag had been cut deliberately with a knife; the ballot-box was emptied; the first respondent’s supporters or agents were asked to refold and stack the used ballot papers in the box to create more room; and the presiding officer distributed 800 ballot papers to the first respondent’s supporters and agents and allowed them to vote.
29. However, we concluded that his Honour tacitly made findings of fact rejecting those allegations by his emphatic rejection of the petitioner’s evidence. His Honour clearly expressed his disapprobation of the petitioner’s witnesses’ evidence and evidently considered that it was not necessary to make express findings of fact.
30. We therefore dismissed the first ground of review as it was premised on the proposition that the petition Judge did not take into account admissions made by the second respondent’s witnesses. Clearly, his Honour did take those admissions into account.
31. Furthermore we concluded that the integrity of the ballot-box was not adversely affected by the conduct of the presiding officer. We stated that it is not simply a matter of a petitioner identifying some error on the part of a polling official. The petitioner must go one step further and show that the integrity of the ballot-box and the ballot papers within it have been substantially and adversely affected. That is the principle reaffirmed by the Supreme Court in Semri’s case. The petition Judge did not expressly apply the test in Semri to the facts of this case as he probably should have done. However, if he had done so he would have reached the same conclusion. Though some errors may have been made by the presiding officer they were not such as to substantially and adversely affect the integrity of the ballot-box.
32. Finally we stated that if the presiding officer technically breached the law, what he did was in all the circumstances reasonable. We stated that we are mindful that presiding officers and returning officers in this country are often placed in very difficult, highly charged and stressful situations. They are called upon to make important decisions often in a hostile environment and often without the benefit of all the advice that might reasonably be thought to be available to help them.
33. We considered all the prevailing circumstances in this case. The presiding officer was clearly in a difficult position. He had only one ballot-box. It was full. Yet there were many apparently eligible voters waiting to cast their votes. What was he to do? Push the ballot-box to its physical limit and therefore perhaps be in technical breach of the Organic Law by causing the inner plastic seal to break? Or close the voting and turn away hundreds of apparently eligible voters, thereby denying them their constitutional right to vote? What was the worse of the two evils? Clearly the latter. The presiding officer chose to avoid the latter and by doing so he allowed the waiting voters to exercise their constitutional rights. We concluded that he acted reasonably in all the circumstances.
34. We therefore dismissed ground of review No 1.
GROUND NO 4 OF THE REVIEW
35. Ground No 4 was that the petition Judge erred by dismissing the second ground of the petition (which concerned alleged errors by the returning officer) as his Honour did not give due weight to the fact that the returning officer rejected objections to his opening the disputed ballot-box and counting the votes inside it, without good and justifiable reasons.
Argument
36. The applicant argued that there was ample evidence available to the returning officer that the ballot-box had been tampered with. However he ignored the strong objections, opened the box, and counted the votes inside it without giving good and justifiable reasons for doing so.
Decision
37. We accepted the respondents’ submissions that this ground of review would rise or fall with the grounds of review regarding the petition Judge’s dismissal of the first ground of the petition.
38. We stated that the fate of the second ground of the petition depended on how the first ground of the petition was dealt with. His Honour could hardly have reached the conclusion that the presiding officer made no errors that affected the result of the election and then conclude nevertheless that the returning officer made errors by deciding to open and count the contents of the disputed ballot-box.
39. We also stated that the case shows that the returning officer was placed in a very difficult position. Undue influence from many quarters was placed upon him. Quite unreasonable and unacceptable pressure was being exerted. A hostile atmosphere within the counting centre was created by a number of people with vested interests in the outcome of the election. The evidence pointed to the returning officer making a considered decision to count the disputed ballot-box. That decision ought to have been respected by all concerned, safe in the knowledge that if it were wrong, the error could be corrected through the processes of the courts. However we found that the returning officer made no error.
40. We accordingly found no error in the way that the petition Judge dealt with this issue. We therefore dismissed ground of review No 4.
41. We will now summarise the grounds put forward in support of the slip rule application.
OVERVIEW OF THE SLIP RULE APPLICATION
42. The application is based on two grounds.
43. First, the applicant contends that in determining ground No 1 of the review, we misapprehended the facts and/or the law in four respects:
44. Secondly, the applicant contends that in determining ground No 4 of the review, we misapprehended the facts and/or the law in two respects:
45. We will address each of the alleged areas of misapprehension in turn. But before doing that we will digress to consider the history of slip rule applications in Papua New Guinea and the principles to apply when hearing such an application. It is important to remember that what we are doing is not hearing an appeal against our own decision or conducting another review of the National Court decision. We are hearing an applicant who says that we made mistakes on our previous decision, so big and apparent on the face of the records that justice demands that we set it aside.
HISTORY OF SLIP RULE APPLICATIONS
46. The Supreme Court has dealt with the question of its power to review or reopen its own decisions on at least eight occasions.
(1) Supreme Court Review No 4 of 1990; Re Wili Kili Goiya [1991] PNGLR 170 – Kapi DCJ, Los J, Sheehan J
47. The applicant had been convicted of murder in the National Court and sentenced to life imprisonment. He appealed to the Supreme Court and lost. He then sought review of the Supreme Court’s decision under Section 155(2)(b) of the Constitution.
48. It was held that the Supreme Court does not have power to review a decision of a differently constituted Supreme Court.
(2) Wallbank v Minife and The Independent State of Papua New Guinea [1994] PNGLR 78 – Los J, Brown J, Sakora J
49. The Supreme Court had upheld an appeal against under-calculation of an amount of damages by the National Court. After the appeal was upheld but before judgment was entered, the applicant sought to reopen the Court’s judgment.
50. The Court stated:
This Court should only consider such applications where there has been a mistake which could be said to be little short of extraordinary and which affects an unsuccessful party.
51. The Court referred to the decision of the High Court of Australia in the leading Australian slip rule case Autodesk v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 with qualified approval. The Court stressed that there had been no misapprehension of the law.
52. The application to reopen the case was dismissed.
(3) SCR No 54 of 1998; Re Chan v Apelis and The Electoral Commission (No 2) (1999) SC591 – Kapi DCJ, Sheehan J, Akuram J
53. The Supreme Court had partially upheld the review of a National Court decision to strike out some grounds of an electoral petition. The applicant later filed an application for the Supreme Court to reopen its judgment and correct perceived mistakes.
54. The Supreme Court held that it has jurisdiction to reopen its decisions to correct mistakes, including where the court has exercised its jurisdiction under Section 155(2)(b) of the Constitution. The court looked one-by-one at the mistakes of fact and law it was claimed to have made. In most instances, the court concluded it had not misapprehended the law or facts of the case.
55. But by majority (Kapi DCJ and Akuram J, Sheehan J dissenting), the court concluded that it had made an error inadvertently striking out two paragraphs of the applicant’s petition. The court agreed that it had, after finding that these grounds failed to raise valid grounds to invalidate the result of the election, failed – wrongly – to consider whether those allegations raised valid grounds for ordering a recount. The court concluded it had clearly made an error. The two grounds of the petition were restored.
56. The application to reopen was therefore partially successful.
(4) SCR No 11 of 1999; Re Lambu v Ipatas, Konu and The Electoral Commission (1999) SC645 – Los J, Hinchliffe J, Sheehan J, Jalina J, Akuram J
57. The National Court had struck out an election petition. The petitioner applied to the Supreme Court to review the National Court’s decision under Section 155(2)(b) of the Constitution. He was unsuccessful. He then brought a second application to the Supreme Court, claiming that one of the two grounds he had relied on before had not been determined. The second application (determined by the same bench that dealt with the first) was dismissed as having no merit. The applicant then brought a third application to the Supreme Court. He argued that the Judges who dealt with his second application "were more concerned in defending their own ruling and had hastily ... considered and ruled on the application ... without foundation in law". Five Judges dealt with the third application.
58. The Court stated, at page 4:
While there resides a discretionary power in the Court to correct its own mistakes that power does not constitute a further extension of the appeal process ... And we will add such a discretion will not be exercised simply because a party is dissatisfied with the ruling.
59. The Court emphasised that it does not sit on appeal against its own decisions.
60. The application to reopen was dismissed.
(5) SCR No 22 of 1999; Re Polye v Sauk and The Electoral Commission (1999) SC643, 24.11.99 – Sheehan J, Jalina J, Sawong J
61. The Supreme Court had made a decision that the applicant was not eligible to stand as a candidate for the election in Kandep Open. His name did not appear on the electoral roll. When he failed to be elected, he could not bring a petition as a candidate. After that decision was handed down, the applicant made a fresh application to the court. He wanted to raise a particular argument that his counsel had failed to raise before.
62. The Court stated that its function is to ensure finality in litigation:
The Supreme Court does have jurisdiction to correct its own errors, but that jurisdiction is for that purpose, the correction of plain, obvious error. It is not available to anybody to simply seek to reargue a decision that went against him or her. It is not to rehash all arguments or to bring up new ones that may be thought up after the event, or should have been brought up at the trial or at the appeal process, or indeed the review process itself. To invoke jurisdiction for that reason alone is an abuse of process. That is what had occurred here.
63. The application to reopen was dismissed.
(6) SCR No 8 of 1999; Re Maino v Avei and The Electoral Commission (2000) SC648 – Los J, Sheehan J, Injia J
64. The National Court had dismissed an election petition. The petitioner then sought review in the Supreme Court.
65. At the centre of the case was the treatment of four affidavits filed by the applicant in the National Court. The affidavits alleged various irregularities in the counting and the conduct of election officials. In its original decision (SCR No 8 of 1999; Re Maino v Avei and The Electoral Commission (2000) SC633), the majority of the Supreme Court treated the evidence in those affidavits as uncontested; and proceeded to find that the National Court had incorrectly rejected the affidavits. The Supreme Court then assessed the merits of (what was assumed to be) the uncontested affidavits and assessed their effect on the result of the election, concluding that the decision was invalid. The Supreme Court (Los J and Injia J, Sheehan J dissenting) upheld the review and declared that the election was invalid and that there should be a by-election.
66. Shortly afterwards, the respondents to the petition applied to the Supreme Court to reopen its judgment on the grounds that there had been a misapprehension of both fact and law.
67. All members of the court applied the tests laid down in Wallbank and Autodesk. Los J joined with Sheehan J in saying that the original majority decision had mistakenly assumed that the four affidavits were uncontested. The admissibility of those affidavits was an "important determinative issue" in the review and therefore it was open to the Court to vacate its decision. The majority (now constituted by Los J and Sheehan J; Injia J dissenting) also found that the Court had misapprehended the law by proceeding to assess the evidence and considering its effect on the election result. The Supreme Court was addressing a question of fact reserved for the National Court and not confining itself to addressing the issues properly before the Supreme Court. It had encroached on an appellate jurisdiction in a matter of review.
68. The application to reopen the Supreme Court’s decision was upheld and its earlier decision reversed.
(7) SCR No 3 of 1999; Special Reference by the Ombudsman Commission, Re Calling of Meetings of the Parliament, 23.02.01, unreported – Amet CJ, Kapi DCJ, Los J, Sheehan J, Sakora J, Sevua J
69. The Court decided that it was open to the Court to entertain a slip rule application under Section 19 of the Constitution, but decided 6:1, Amet CJ dissenting, that there were no grounds to warrant the application being upheld.
(8) SCR No 23 of 2004; Re Nomination of Governor-General, Application by Sir Pato Kakaraya (2004) SC752 – Kapi CJ, Injia DCJ, Hinchliffe J, Salika J, Sawong J
70. The Court had decided that the election and appointment of the applicant as Governor-General was unconstitutional and null and void. The applicant, Sir Pato Kakaraya, asked the court to re-open and review its decision under the slip rule. He argued that the Court had made 33 errors of fact or law. The Court dismissed all of the arguments and concluded:
It is obvious that the applicant has misunderstood the provisions of the Constitution relating to the Supreme Court’s power on appeal and review. The application is clearly misconceived and an abuse of the process of this Court. The application should be dismissed on the question of jurisdiction alone.
Alternatively it is also obvious that, each of the grounds for review considered either separately or together do not stand up to the test of slip-rule application. The grounds and submissions advanced are either a rehash of the submissions put and considered by the Court in the first instance, or are irrelevant, vague or unreasonable and have no substance at all.
In our opinion the applicant has failed to demonstrate any misapprehension of fact alone, mixed fact and law or questions of law alone. We would dismiss the whole application. The matters raised either separately or collectively do not amount to grounds upon which the principles in the slip-rule may be applied.
Also in our opinion, the application under the slip-rule is an abuse of process of this Court.
THE PRINCIPLES GOVERNING SLIP RULE APPLICATIONS
71. In Kakaraya’s case the Court indicated that slip rule applications are governed by at least six general principles. We agree that that is so and would add a further one that encapsulates what is involved in the others.
(1) There is a substantial public interest in the finality of litigation
72. The principle of finality is the first and foremost principle for the court to take into account. In Wallbank the Supreme Court stated:
We consider that the public interest in the finality of litigation must preclude all but the clearest "slip" error as a ground to reopen. To that extent, then, while the High Court of Australia may have been willing to widen its discretionary ambit of review, this Court is unwilling to go so far, for the mischief occasioned by the resultant uncertain nature of a Supreme Court decision following appeal would, in our view, be contrary to the public interest.
73. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution.
(2) On the other hand, injustice should if necessary be avoided
74. In De L v Director-General, NSW Department of Community Services [1997] HCA 14; (1997) 190 CLR 207 the High Court of Australia emphasised that the strict approach that courts had taken to the reopening of judgments was a recognition of two competing objectives of the law:
On the one hand there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice.
(3) The Court must have proceeded on a misapprehension of fact or law
75. The Supreme Court may take the exceptional step of reviewing or rehearing an issue when it has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law, ie the court has the capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment.
(4) The misapprehension must not be of the applicant’s making
76. Another necessary component of the "test" to apply is that the applicant must show that, in addition to the misapprehension of fact or law, this misapprehension was not attributable solely to his neglect or default (Wentworth v Woollahra Municipal Council [1982] HCA 41; (1981-1982) 149 CLR 672; State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 28; De L v Director-General, NSW Department of Community Services [1997] HCA 14; (1997) 190 CLR 207).
(5) The purpose is not to allow rehashing of arguments already raised
77. The jurisdiction to reopen is not to be exercised simply because the party seeking a rehearing has failed to present an argument in all its aspects or as well as it might have been put.
78. Los J stated in Maino, at page 2:
A reopening must not be to reagitate arguments or to better argue when in the first argument not all aspects of the argument were put.
79. Sheehan J stated in Maino at pages 4-5:
... this is not an extension to the appeal system. The purpose is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their case. There has to be a genuine error or misapprehension, one not occurring through failure of the parties to put their case adequately.
80. Brennan J stated in Autodesk:
To entertain an application to reopen an appeal after judgment in order to consider further argument on an issue already decided would be to subvert the finality of litigation and to invite interminable argument about the importance of the legal questions to be recanvassed and the correctness of the answers to those questions already given.
(6) The purpose is not to allow new argument that could have been put to the Court before
81. If an applicant wants to have a judgment vacated so that a new argument can be put, this should not be permitted. This principle is well illustrated by the Supreme Court’s decision in Polye, where the application was held to be an abuse of process.
82. In University of Wollongong v Metwally (No 2) [1985] 59 ALJR 481, the High Court of Australia stated:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
83. In Williams v Spautz (1993) 67 ALJR 388, the Federal Court of Australia held that where a party makes a deliberate decision not to raise certain points of law and had the opportunity to raise them, it cannot later go back to the court and have the matter reopened.
84. Likewise, where the applicant wishes to draw the court’s attention to authorities that were not referred to previously, this is not a good reason to reopen a judgment. In Autistic Association of New South Wales v Dodson [1999] FCA 852 the Full Court of the Federal Court of Australia stated:
It would be an improper exercise of the power to revisit and vary a judgment on the ground that a party had failed to take the opportunity to refer the Court to a particular case in support of an argument put by that party.
(7) The court must, before setting aside its previous decision, be satisfied that it made a clear and manifest, not an arguable, error of law or fact on a critical issue.
85. This is the extra principle that we believe encapsulates the principles recognised in Kakaraya’s case. What the applicant must alert the court to is an obvious error or mistake – something that stands out like nothing else. A clear and manifest error of law or fact – not something that is merely arguable – on a critical issue. The applicant must also show that if the error were not made the result of the case would have been different.
86. We will now consider each of the alleged mistakes, errors, slips or misapprehensions (all those terms mean the same thing) made in our original judgment, in light of the above principles.
87. It will be recalled that the applicant says we made four mistakes in rejecting ground No 1 of the review of the National Court decision and two mistakes in rejecting ground No 4.
ALLEGED MISAPPREHENSIONS OF LAW AND FACT IN DETERMINATION OF GROUND NO 1 OF THE REVIEW
88. The applicant argues that we misapprehended the facts and/or law in four respects.
(1) Misapprehension of circumstances in which the ballot box was opened
Argument
89. The applicant argues that our view that the petition judge should have made five findings of fact, based on the uncontested evidence, about the circumstances in which the ballot box was opened, involved a misapprehension of the evidence, as the evidence was not uncontested and there was no basis for us making those findings. Furthermore, we erred in law by making findings of fact as we were exercising review, not appellate, jurisdiction.
Determination
90. When we referred to uncontested evidence we were pointing out that in the National Court it was clear and uncontested that certain things were done to the full ballot box, culminating in the presiding officer opening it and pushing down ballot papers with his right foot to create more space. We pointed out that other aspects of the evidence were contested. For example the petitioner’s (the applicant’s) witnesses alleged that the inner plastic seal tag of the ballot box was cut deliberately with a knife; the ballot-box was emptied; the first respondent’s supporters or agents were asked to refold and stack the used ballot papers in the box to create more room; and the presiding officer distributed 800 ballot papers to the first respondent’s supporters and agents and allowed them to vote. We stated that the petition Judge tacitly made findings of fact that none of those things happened by virtue of his emphatic rejection of the petitioner’s evidence. We considered the evidence and explained the findings of fact that we thought the petition Judge should have made.
91. We did not misapprehend the facts or the evidence. As a review court we were entitled to say what findings of fact the petition Judge should have made based on the evidence, given that his Honour did not make express findings of fact. We committed no error of law in that regard.
92. We dismiss the applicant’s first argument.
(2) Misinterpretation of principle in Semri’s case
Argument
93. We misapprehended the law when we stated that the principle in Semri’s case is that a petitioner must show that the integrity of the ballot-box and the ballot papers within it have been "substantially and adversely affected". The petitioner only has to show that an error by a polling official has "affected" or "questioned" the integrity of the ballot box.
Determination
94. The applicant made extensive submissions at the hearing of the review on the relevance of Semri’s case, the test that it laid down and how its facts should be distinguished from those in the present case. We considered the applicant’s and the respondents’ submissions. We agreed that Semri’s case was important. We said it shows that it is not simply a matter of a petitioner identifying some error on the part of a polling official. The petitioner must go one step further and show that the integrity of the ballot-box and the ballot papers within it have been substantially and adversely affected.
95. The applicant has seized upon our use of the descriptors "substantially and adversely" to argue that we misinterpreted Semri, which only requires that an error "affected or questioned" the integrity of a ballot box.
96. This is hair-splitting. We made no error in interpreting the test in Semri. Even if there were a significant difference between what we said in our judgment and what was said in Semri, it would be inconsequential as the Supreme Court is not bound by its previous decisions (Constitution, Schedule 2.9(1), Underlying Law Act 2000, Section 19(1)).
97. We dismiss the applicant’s second argument.
(3) Misunderstanding of argument about Section 130(1)(e) of the Organic Law
Argument
98. We misapprehended the facts and law when we stated that if the presiding officer technically breached the law by causing the inner plastic seal of the ballot box to break, what he did was in all the circumstances reasonable. We misunderstood the applicant’s argument which was that the breach of the Organic Law was not the breaking of the plastic seal but the opening of the ballot box, which is expressly prohibited by Section 130(1)(e) of the Organic Law. Furthermore, what happened could not reasonably be regarded as a technical breach of the law. It was an actual breach. Therefore we reached the absurd conclusion that presiding officers can break the Organic Law as long as they conjure up reasonable excuses.
Determination
99. We did not misunderstand the argument about Section 130(1)(e). It was a valid argument based on one’s reading of the Organic Law. The applicant was arguing that Section 130(1)(e) says that a presiding officer shall on no account open a ballot box; yet that is exactly what the presiding officer did in this case: he opened the box and put his foot in it, thereby breaking the law.
100. We considered the argument and concluded that even if the presiding officer’s actions were regarded as a breach of the Organic Law – to describe it as a technical or an actual breach makes no difference – what he did was in all the circumstances reasonable. That conclusion is consistent with the principle of Semri’s case and Section 218(1) of the Organic Law: a petitioner must not only identify an error on the part of a polling official but must go one step further and show that the integrity of the ballot box and the ballot papers within it have been substantially and adversely affected.
101. Our judgment would have been more clearly expressed had we referred to the alleged error by the presiding officer as the opening of the ballot box rather than the breaking of the plastic seal. However, we appreciated the argument about Section 130(1)(e). It was the applicant’s strongest argument but it was poorly articulated. The applicant’s grounds of review were so elaborate and convoluted it was difficult to work out what the grounds actually were.
102. The applicant is now trying to convince us that our decision will mean that breaches of the Organic Law will have absurd consequences because they will be able to be excused if the breach is considered reasonable. We do not agree. Our decision will simply reinforce the law as stated in Section 218(1) and in Semri’s case: it is not simply a matter of identifying an error; the petitioner must also prove the extra requirement concerning the integrity of the ballot box. That means the reasonableness of the conduct constituting the error must be considered. That is not an absurd consequence.
103. Finally, our determination of this argument has led us to consider an alternative interpretation of Section 130(1)(e). Recall that it states:
When a ballot-box is full or no longer required for the polling, or at the end of the polling period for all polling places which he is the presiding officer, whichever first occurs, the presiding officer shall, with the least possible delay, forward the ballot-box for the purposes of scrutiny, and it shall on no account be opened except in accordance with this Law.
104. The applicant contended that Section 130(1)(e) absolutely prohibits the opening of a ballot box between when its cover is fastened and when the time comes for scrutiny (ie when the votes are counted). It is arguable that Section 130(1)(e) should be read another way. First it obliges the presiding officer to forward a full ballot-box for scrutiny without delay. Secondly, once it is forwarded, the ballot-box cannot be opened. The prohibition against opening the ballot box does not arise until after the ballot box is full and forwarded. It is the presiding officer who determines whether the box is full; and the best way to do that might be to open it and – as happened in this case – create more space. When he opened the box it was not full. Therefore the duty to forward it for scrutiny and the prohibition against opening it had not arisen. The presiding officer did not breach the Organic Law.
105. We are not making a decision of law to that effect. We are only making those comments for the purpose of demonstrating that the argument about Section 130(1)(e) was not as cut and dried as the applicant considers. We fully considered the applicant’s arguments based on Section 130(1)(e) and rejected them in our original decision. Nothing submitted in support of the present application shows that we misapprehended the law.
106. We dismiss the applicant’s third argument.
(4) Errors of fact about threats of hostility faced by the presiding officer
Argument
107. We misapprehended the facts when we stated that presiding officers and returning officers are often placed in very difficult, highly charged and stressful situations and called upon to make important decisions in a hostile environment without the benefit of advice. All the evidence before the National Court showed that neither the presiding officer nor the returning officer was under any threat of hostility and that they needed no advice as they had experience and training.
Determination
108. The applicant has misread the judgment. We did not make a finding that the presiding officer was under a threat of hostility. We indicated, later in the judgment, that the returning officer was operating in a hostile environment. But for the purposes of ground 1 it was the conduct of the presiding officer at the polling place that was relevant, not the returning officer’s conduct at the counting centre. The comment we made about the presiding officer was that he was clearly in a difficult position. He had only one ballot-box. It was full. Yet there were many apparently eligible voters waiting to cast their votes. What was he to do? We concluded that he acted reasonably in all the circumstances by opening the ballot-box and creating more space. We did not misapprehend the facts.
109. We dismiss the applicant’s fourth argument.
Conclusion re ground No 1 of the slip rule application
110. A slip rule application is not meant to be an avenue by which a person aggrieved by the original decision appeals against it, complains about or offers a critique of it. But that is what the applicant has tried to do with the first ground of this application.
111. As the High Court of Australia said in University of Wollongong v Metwally (No 2) it is elementary that a party is bound by the conduct of his case. When he applied for review of the National Court decision the point about Section 130(1)(e) was included within ground of review No 1 but it was mixed together with so many other issues it was difficult for the Court to understand what the argument actually was. Ground of review No 1 focussed on the petition Judge’s failure to take into account admissions at the trial by some of the respondents’ witnesses about how the presiding officer tampered with the lid, the ballot box and the ballot papers. When we examined the evidence before the National Court and the petition Judge’s judgment it was clear that his Honour did take into account the admissions by the respondents’ witnesses. Therefore the central plank of ground No 1 of the review was found to have no substance.
112. The applicant’s counsel has articulated the Section 130(1)(e) point more clearly in the slip rule application but he is still bound by the way that the review was conducted. The clearer articulation of the argument has come too late and is of no consequence.
113. The applicant has failed to convince us that we made an error of fact or law on any issue in our determination of ground No 1, let alone one that was clear and manifest.
114. The applicant’s four arguments are a rehash of arguments already made, which we carefully considered when making our original decision. None of the arguments have been sustained so the first ground of the slip rule application is dismissed.
ALLEGED MISAPPREHENSIONS OF LAW AND FACT IN DETERMINATION OF GROUND NO 4 OF THE REVIEW
115. The applicant argues that we misapprehended the facts and/or law in two respects.
(1) Misunderstanding of ground of review
Argument
116. We misapprehended the ground of review, which was based on Section 154(2)(a) of the Organic Law, which states:
The electoral officer conducting the scrutiny shall, in the presence of a presiding officer, poll clerk or an officer and of such authorized scrutineers as choose to attend and any other person approved by the Returning Officer ... open all ballot-boxes received from polling places within the electorate.
117. The ground of review was that the returning officer had a duty to make a reasonable and fair decision about the counting of the disputed ballot box and that he breached that duty by counting it when it was clear it had already been opened and someone had tampered with the ballot papers. The ground of review was not that the returning officer did not give good and justifiable reasons for his decision to count the votes in the disputed ballot box. The ground was that there were no good and justifiable reasons. We focussed on the returning officer’s alleged failure to give reasons rather than on his alleged breach of the Organic Law. We therefore failed to properly consider ground No 4.
118. Furthermore, we erred by dismissing ground No 4 simply on the basis that we had dismissed ground No 1. We failed to consider the argument that a returning officer had a duty not to count an already opened ballot box, irrespective of whether errors had been made at the polling place.
Determination
119. The applicant is again indulging in hair-splitting. The first part of his argument is trivial. Whether the ground of review is regarded as the failure to give good and justifiable reasons or failure to have good and justifiable reasons, the effect is the same. We understood the applicant’s argument and our conclusion was that the returning officer had good and justifiable reasons for counting the disputed ballot box.
120. As to the second part of the argument, we still see no merit in it. The presiding officer made no errors in his treatment of the ballot box that substantially and adversely affected its integrity. Therefore it follows that the returning officer made no error by deciding to open and count its contents.
121. We dismiss the applicant’s first argument.
(2) Misapprehension of facts about atmosphere at the counting centre
Argument
122. We misapprehended the facts when we stated that the returning officer was placed in a very difficult position, undue influence, unreasonable and unacceptable pressure was being exerted and there was a hostile atmosphere within the counting centre. All the evidence before the National Court showed that the returning officer was under no threat and scrutineers only did what was required of them by raising objections.
Determination
123. Our assessment of the position the returning officer was placed in was based on the transcript of evidence in the National Court. We reject the contention that the returning officer was under no threat.
124. We dismiss the applicant’s second argument.
Conclusion re ground No 2 of the slip rule application
125. The first argument was a rehash of arguments already made, which we carefully considered when making our original decision and rejected. The second argument has no substance. Therefore the second ground of the slip rule application is dismissed.
CONCLUSION
126. Both grounds of the slip rule application have been dismissed. Therefore we dismiss the whole application.
COSTS
127. The general rule is that costs follow the event, ie a successful party has its costs paid for by the losing party. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule. The applicant will pay the respondents’ costs.
RULING
128. The Supreme Court will direct entry of judgment in the following terms:
Judgment accordingly.
_____________________
Leo Lawyers: Lawyers for the applicant
Daniel Kop Lawyers: Lawyers for the first respondent
Nonggorr & Associates: Lawyers for the second respondent
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