Motor Vehicles Insurance (PNG) Trust Ltd v Yama Security Services Ltd [2009] PGSC 23; SC1004 (2 December 2009)

SC1004

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 52 OF 2000

BETWEEN:

MOTOR VEHICLES INSURANCE (PNG) TRUST LIMITED
Appellant

AND:

YAMA SECURITY SERVICES LIMITED
Respondent

Waigani: Salika, DCJ, Kirriwom & Batari, JJ
2005: 01 October
2006: 05 May, 14 July
2009: 02 December

REVIEW - Practice and Procedure – Appeal - Application by lawyer appearing as amicus curiae to re-open appeal following unsuccessful appeal after reasons delivered – whether lawyer had instructions from party aggrieved by appeal decision.

REVIEW - Practice and Procedure –Appeal – Slip Rule - Principles on which Court will consider application to re-open – mistake of fact – whether fact allegedly mistaken is – sustainable and maintainable in law – Delay and conduct of applicant – Relevance of.

Cases cited

Kasap v Yama [1988-89] PNGLR 197.
Autodesk Inc Dyson (No. 2) (1992 – [1993] HCA 6; 1993) 176 CLR 300.
Richard D Wallbank & Minifie v. The State [1994] PNGLR 78.
Dick Mune v Paul Poto (No 2) [1997] PNGLR 356.
Re: Nomination of Governor–General; Application by Sir Pato Kakaraya (No 2) (2004) SC752

Counsel

No appearance for Appellant/Applicant
Ben Lomai, for the Respondent
Kerenga Kua as amicus curiae

DECISION

2 December, 2009

1. BY THE COURT: An application was made by Mr. Kua appearing as amicus curiae to re-open a decision of the Supreme Court (Salika, Kirriwom, and Batari, JJ) dated 26th May, 2006.

Counsel’s Appearance as Amicus Curia

2. Mr. Kua’s nature of appearance is a little intriguing because he was not an invitee of the court as in the usual course to assist the court. The role of an amicus curiae is synonymous with an independent counsel with no fixed agenda or instructions from a party on an issue, usually legal, in the proceedings before the court. In this case, Mr. Kua’s appearance as ‘friend of the court’ seemed a little at odds with his adversarial advocacy of the appellant’s case. He could be misunderstood. But we note that, Counsel had no instructions either from Motor Vehicle Insurance (PNG) Trust Limited (MVITL) or the Motor Vehicle Insurance Limited, (MVIL) to pursue the earlier application as well as this ‘slip application.’

3. We make no further observation on this matter as neither counsel’s locus standi’ nor his conduct was ever raised at the hearing of the appeal or on this application to reopen the case. Counsel was actually granted leave with consent of the other party and had this Court’s indulgence to appear in that capacity on both occasions. In essence, counsel’s skilful and compelling arguments were strictly confined to fundamental procedural issues of law and facts which the court in the end accepted but decided against.

Background and the Issue for Determination

4. The decision sought to be reopened followed an appeal argued on the grounds of nullity of proceedings before the National Court in Waigani. The subject of the decision related to a judgment of the National Court on 25 August 2000 entered against the defendant, now the appellant in this appeal, in the sum of K4,398,937.85 with costs. Subsequent to that judgment, the proceedings were amended to substitute MVITL with MVIL as the judgment debtor.

5. The issue closely linked with parties to the proceedings claimed to have been procedurally and legally incorrect is, whether the naming of a party that did not exist at the time of the filing of the Writ rendered the entire proceedings a nullity and was void ab initio. This Court’s affirmative answer and final orders are said to have proceeded from a mistaken fact as the substitution orders had been set aside. Hence, the issue on this application is whether the Supreme Court ‘slipped’ in its decision.

Court’s Jurisdiction to Reopening a Decision under a ‘Slip Rule Application’

6. The power to reopen a concluded Supreme Court matter is part and parcel of the Supreme Court’s inherent jurisdiction. In reviewing previous Supreme Court decisions on this issue, the Supreme Court in Re: Nomination of Governor–General; Application by Sir Pato Kakaraya (No 2) (2004) SC752, affirmed:

"It is settled law that the Supreme Court, the highest Court in the land, has jurisdiction to re-open and review its own decision in appropriate cases. This jurisdiction is inherent in the fact that it is the court of last resort. This is a principle of common law (Autodesk Inc v Dyason (No. 2)(1992 – [1993] HCA 6; 1993) 176 CLR 300) adopted as part of the Underlying Law under Schedule 2.2 of the Constitution (see Wallbank & Minifie v The State [1994] NGLR 78, ..."

7. Mason CJ’s decision in Autodesk Inc v. Ryson (No. 2) (1992 – [1993] HCA 6; 1993) 176 CLR 300 show when a decision can be reopened and when it should not:

"These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue cases." (Underlying added)

8. The Supreme Courts jurisdiction to re-open a decision or a case is limited but on legal principles. Counsel, Messrs. Kua and Lomai have argued pursuant to those authorities either in support or against re-opening of the case before this Court and relied on Richard Dennis Walbank and Jeannette Minifie v. The State [1994] PNGLR, 78 where, leaving aside the criminal aspect, the Court said:

"In civil appeals, those matters found relevant canvassed by Mason CJ, spring from that Court’s inherent powers. This Court’s powers on appeal are found in s 16 of the Supreme Court Act Ch.37 and do not envisage any power to reopen the appeal after judgment. There must be a discretionary power in the court to correct its own mistake but in this case we are not minded to find that a mistake has occurred, or there has been an error in need of correction.

Since this Court is the final court of appeal, as in the High Court of Australia in that country’s judicature, we consider Mason CJ’s comments apposite, subject to a proviso. 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."

9. In Dick Mune v Paul Poto (No 2) [1997] PNGLR 356 the Supreme Court said the inherent jurisdiction of the court to rectify a mistake, can only be invoked in order to avoid injustice in a ‘slip rule’ application.

10. It has to be accepted however that the Slip Rule application is not an open ended principle that one could invoke in every case when a party is unhappy about a decision or ruling against it. One has to show that there was an apparent mistake arising from some miscarriage in the judgment of the court which ought to be rectified for the public interest in the finality of litigation. Otherwise for example this application would be a total abuse of process. We adopt the caution in Wallbank & Anor. v. The State (supra) that:

"The Supreme Court Act does not specifically touch on the manner or extent of this Court’s power to entertain fresh argument after decision whether before or after judgment. 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." (Underlying added)

11. The test to be applied as set out in the case of Re: Nomination of Governor–General; Application by Sir Pato Kakaraya, (supra) is:

"(1) There is a substantial public interest in the finality of litigation.

(2) On the other hand, any injustice should be corrected.

(3) The Court must have proceeded on a misapprehension of fact or law.

(4) The misapprehension must not be of the applicant’s making.

(5) The purpose is not to allow rehashing of arguments already raised.

(6) The purpose is not to allow new arguments that could have been put to the Court below."

12. In our view, it is also relevant to consider whether:

(1) the mistaken fact is sustainable in law;

(2) the mistake must affect the rights of an unsuccessful party. (per Wallbank);

(3) a mistake if corrected would potentially affect the outcome of the case.

13. In support of the third proposition, the Supreme Court in Straits Contracting v Branfill Ltd [1988] PNGLR 293 at p. 241 in adopting the principles stated in Parao Tunboro v MVIT [1984] PNLR 272, stated that, reopening a case for the purpose of receiving fresh evidence can be allowed if, "there is no doubt that the new evidence would affect the result of the petition if allowed".

Relevant Portions of Judgment under Review

14. At the time of the appeal, the issue before the Court was confined to validity of naming a non-existing party in a proceeding. This was argued as a preliminary point and succeeded. It also led to a conclusion in which a mistake is said to have occurred.

15. So, we begin by quoting the relevant paragraph of the decision of the Court in the decision of 5th May, 2006 where we held the proceedings were a nullity from the start. There the Court said:

"Pursuant to s.238(f) of the Companies Act, proceedings pending against an amalgamating company (MVIT) may be continued against the amalgamated company (PNGBC Limited). PNGBC Limited would have succeeded to the liabilities of MVIT on amalgamation. MVIT was not in existence on 11th March, 1999 at the time of filing of the Writ of Summons. It was indeed a nullity to proceed against MVIT. The Writ was not amended to name the correct party PNGBC Limited at the time. In the meantime, PNGBC was put up for sale and amalgamated with the Bank of South Pacific

The Writ remained unamended until judgment was made for the plaintiff against the defendant MVIT which was then non existent. That judgment was entered on 31st August, 2001."

16. The Supreme Court further made observations on the National Court Orders of 2nd July, 2001 substituting the name MVIT with MVIL. The Court was of the view; the National Court orders were neither set aside nor appealed against. It concluded MVIL was stuck with the substitution. The relevant portion of the judgment reads:

"Then belatedly an order was taken out in the National Court dated 2nd July, 2001 and entered on 20th July, 2001. The Court ordered that the name of the second defendant in WS 225 of 1999 be amended to Motor Vehicle Insurance Limited. The effect of this was that the minute of the judgment made on 25th August, 2000 and entered on 31st August, 2000 was against MVIL and not MVIT. MVIL is therefore the party against whom the judgment was made. Issues arising out of that are whether or not MVIL was served the Notice of Motion to amend the Writ at the time and therefore the minute of the Orders of the Court and whether MVIL was served the Orders of the court as amended on 2nd July, 2001 and entered on 20th July, 2001."

17. These are the portions of the judgment which MVIL seeks to re-open together with the final orders of the Supreme Court. In the ensuing paragraphs, we discuss under each sub-heading, relevant issues to be determined in relation to the test to be applied

Whether the Court had proceeded on a mistake of fact or law.

18. Mr Kua contended the misapprehension or mistake by this Court is one of fact. The Order to substitute MVIL as the judgment debtor was made on 2nd July, 2001. There is no contest as between the parties that:

(1) On 15/8/01, the MVIL filed an application in the National Court for orders to set aside the substitution orders of 2/7/01.

(2) On 17/8/01, the National Court made an order that the Order for substitution made on 2/7/01, be set aside.

19. Those documents exist on the court records. The Supreme Court appeared to be clearly unaware that the substitution order was subsequently set aside when it stated at pg.9 of its judgment:

We do not know what evidence was before the Court on 20th July, 2001 for the Court to have made those Orders. Was it satisfied that MVIL was a successor company to MVIT? That we do not know. NO appeal appears to have been filed against those Orders by MVIL.

As it is, there is a judgment against MVIL not MVIT. The nullity issue appears to have dissipated when the amendment was effected on 2nd July, 2001. The effect of this judgment is that the appeal has been a nullity because the appellant company was no longer existing."

20. Consequently the Supreme Court had proceeded on a misapprehension or mistake of fact.

Nature of Misapprehended or Mistaken Fact

21. The mistaken fact here is the existence on record, of the substitution orders having been set aside. We are of the view that, the alleged mistaken facts must stand the test of reliability and be sustainable in law. So, it is essential to consider the circumstances surrounding the fact in question and determine if the misapprehended or mistaken fact is reliable and maintainable.

22. The setting aside of the substitution orders itself was only the first step towards defending an application to substitute MVIL for MVITL as judgment debtor. The initial amendment was made on 2nd July 2001. It was set aside on 17th August, 2001. The process was incomplete and remains incomplete to date.

23. It is obvious the substitution application has been on the records all along. MVIL had an acute interest and responsibility to defend an early prosecution and seek remedial relief in the event of delay. Having obtained the setting aside orders, MVIL took no further action to pursue it. The orders had been left in abeyance for 5 years to the time of this application and there has been no explanation for inordinate inaction and delay.

24. MVIL has clearly shown by its conduct, not to be interested in pursuing the substitution application. It did seek counsel or legal representation to pursue its application before the National Court.

25. Quite clearly, MVIL had made a deliberate choice not to pursue that application. It also had the opportunity to join MVITL in the nullity application before the National Court but did nothing. A further opportunity went begging to join in the prosecution of the nullity issue on appeal. Even up to this point, it has shown no urgency to protect its own interests.

26. So, MVIL cannot now appear surprised with the conclusion that it is stuck with the K4.4 million debt. Its own failure to protect its own interests at the opportune times contributed to what Mr. Kua is belatedly putting to the Court as a mistake of fact.

27. Besides, MVITL’s lawyers should have been instructed on the status of the company from the beginning and raised that in its Defence. That was never done. When the orders for substitution of MVIL for MVITL as judgment debtor was obtained, MVITL did not seize the opportunity to support the MVIL in its application to set aside the substitution orders.

28. Then very late on 2nd March 2004, MVITL attempted to set aside the principal orders of 25th August 2000 in a separate fresh application raising the issue of nullity. It had all along been aware of the orders setting aside the substitution orders. Mr Kua deposed to that fact in his Affidavit of 24 June 2004 but MVITL did not consider it an important and critical issue then to pursue in a separate proceeding, or together with the nullity issue.

29. Counsel, Mr Kua had no instructions from either MVTIL or MVIL. He was granted audience as ‘friend of the Court’, to argue what he perceives to be an injustice on the face of the records. So, he is in no better position to assist the Court on those crucial failures by MVIL and MVITL.

30. We are of the view that, in the circumstances, any attempt now to pursue the setting aside application will be against public interest in the finality of proceedings. There comes a time when things are entitled to be treated as they appear. In such an application as this where a party is challenging a decision or pursuing an application which has serious implications against the other party, the applicant is under a heavy duty to act expeditiously and fairly.

31. Neither MVIL nor MVIT are entitled to sit on the setting aside application until such a time which will be convenient to it to make or pursue the application while to its clear knowledge, the judgment debtor is entitled to the fruits of its judgment debt. Further, it is open to conclusion that, the orders to set aside the substitution orders would have dissipated from lack of interest, passage of time and events leading up to and surrounding the nullity application.

32. We conclude that, the purported mistaken of fact is no longer maintainable in law.

Whose misapprehension or mistake of fact was it?

33. Even if a misapprehension of facts or a mistake exists on the face of the records, consideration must be had of the cause of the misapprehension or mistake in determining whether to re-open. The principle is that, the misapprehension or mistake must not be of the applicant’s making.

34. What must emerge, in order to enliven the exercise of its jurisdiction is that, the Court has apparently proceeded according to some misapprehension of the facts or relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking a rehearing.

35. It is conceded the only matter before the Court for determination was the question of nullity of proceedings in WS 225 of 1995. Mr. Kua in his attempt to show nullity of the proceedings from the outset gave meticulous detail of events leading to the merger of MVITL with PNGBC Ltd to support his contentions. Issues pertaining to the substitution orders seemed irrelevant and were not raised although it would have been obvious from the records that it was a pertinent issue.

36. What emerges from the foregoing discussions is a gross oversight on the part of MVITL. The orders setting aside the substitution orders were current and known to MVITL when it raised the nullity issue. It did not brief legal counsel to pursue the substitution orders. Nor did it instruct any one to raise it on appeal. Those omissions were either due to lack of due diligence, or it was a deliberate choice not to pursue or draw it to the Court’s attention. We conclude that MVITL is entirely responsible for the purported mistake or misapprehension of fact in the decision of the Court.

The ‘slip rule’ is not to allow rehashing of arguments already raised

37. The issue as it arises now is clearly not seeking to rehash any arguments already presented in the previous Court. It is an attempt to show that a fact on the face of the records was overlooked by the court is still current.

Whether the new arguments could have been put to the Court below.

38. The principle is that, the inherent power of the Court is not to be exercised simply because the party seeking a re-hearing has failed to present the arguments in all its aspects or as well as it might have been put: Autodesk Inc v. Ryson (No. 2).

39. The contention by Mr. Kua is that, the issue raised on this ‘slip rule’ application could not have been made previously. The issues were not before this Court, then. The findings of fact only occurred upon pronouncement of the Court Judgment on 5th May 2006.

40. From the records, MVITL had simply failed to raise the aspect of substitution at the opportune times. One of those occasions was at the prosecution of the appeal. It did not pursue the nullity issue on all its aspects which included the validity of substitution of MVIL for MVITL as judgment debtor. It in fact did not instruct anyone to raise it. For that failure, this application is misconceived.

The mistake must affect the rights of an unsuccessful party

41. Counsel Mr Kua raised a number of alleged breaches of MVIL’s corporate rights as a result of the mistake and submitted in the upshot, that there has been gross injustice. He said MVIL’s rights have been seriously affected to the extent that it is now liable to K4.4 million as a result of a mistake which must be rectified.

42. MVIL has the resources and means to protect and preserve its own corporate interests. It did not show any interest or due diligence to avoid or avert any real, purported or potential breach of its rights. It should at least seek legal counsel or instruct lawyers to defend its interests. It could have also instructed Mr Kua in the nullity application as well as this application. By its conduct, it is apparent MVIL did not consider it an important matter to expend its time and resources on. The purported injustices only exist because Mr Kua has come to Court as an independent counsel and raised them in an intellectual, academic exercise. He had no instructions from MVIL.

A mistake if corrected would potentially affect the outcome of the case

43. Mr Kua submitted that the outcome of the case will be affected if the mistake or fact is corrected. He contends that from the Court’s own reasoning, its own mistaken belief was the reason why MVIL’s submissions on nullity was refused.

44. In the light of the foregoing discussions on the conduct of the MVIL and MVITL in the proceedings before the National Court and this Court, the so-called mistake slips into obscurity and is overtaken by time lapse and prevailing circumstances.

There is a substantial public interest in the finality of litigation

45. Accepting that a substantial public interest in the finality of litigation will prohibit entertainment of fresh argument after decision, the applicant must show the "clearest ‘slip’ error" to justify reopening of the decision. The public interest considerations dictate that any reopening must be allowed only in exceptional circumstances.

46. MVIL has not shown exceptional circumstances exist to justify a re-opening of the court decision.

On the other hand, any injustice should be corrected

47. We reiterate the proceedings against MVTIL had been a nullity from the beginning. MVIL was not served with the Writ of Summons nor was it joined as a party to those proceedings. So, to substitute MVIL for MVITL as judgment debtor would be procedurally improper and unjust. It was indeed in that light that the MVIL successfully obtained orders to set aside the substitution orders.

48. The company then sat on that course. It did not follow the application through in order to protect its interests and put right any injustice that might have been caused against it.

49. But it is clear; MVIL up to now has not shown real concern for the substitution orders and does not complain of any injustice being caused. Any issue or cause for injustice before this Court only exists because Mr Kua is of the view that such is the result of the substitution orders. He has no instructions from MVIL as regards its position on this matter.

50. So, it is open on the facts and its conduct that MVIL has no further interest or concern with the substitution orders. Any purported injustice assumed from the face of the records dissipate in the absence of instructions from the purported aggrieved party. The passive reaction against the substitution orders and the prevailing inaction to protect its own interest can not be seriously taken as being supportive of injustice. The conduct of MVIL surrounding the substitution application supports the contrary view that, any purported injustice caused is of no or little concern to MVIL.

Conclusion

51. Applying the slip rule principle which permits the Court to review or rehear an issue when there is good reason for the Court to consider that it has in its earlier decision proceeded on a misapprehension of fact or law, quite plainly any mistake of fact is largely caused by MVIL. The merits of that mistaken fact disappears into oblivion by the conduct of MVITL.

52. We therefore reject the application to reopen the Supreme Court decision made on 5/5/06.

53. The cost of this application shall be in the cause.

___________________________________________

Lomai & Lomai Attorneys: Lawyers for Applicant
No Appearance for Respondent/Applicants
Kerenga Kua: Appearance as Amicus Curiae with leave