Trawen v Kama [2010] PGSC 15; SC1063 (16 July 2010)

SC1063

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

(1) SC Rev 55 of 2008

In the matter of an Application under s.155 (2) (b) Constitution and
In re Part XVIII Organic Law on National and Local Level Government Elections

BETWEEN:

ANDREW TRAWEN, ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Applicant

AND:

JOHN ITANU, RETURNING OFFICER FOR SOUTH BOUGAINVILLE OPEN ELECTORATE
Second Applicant

AND:

STEVEN PIRIKA KAMA
First Respondent

AND:

MICHAEL LAIMO
Second Respondent

(2) SC Rev 56 of 2008

BETWEEN:

MICHAEL LAIMO
First Applicant

AND:

ANDREW TRAWEN, ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Applicant

AND:

JOHN ITANU, RETURNING OFFICER FOR SOUTH BOUGAINVILLE OPEN ELECTORATE
Third Applicant

AND:

STEVEN PIRIKA KAMA
Respondent

Waigani: Sakora, Batari, Lenalia,
Davani, Hartshorn JJ.
2010: 22nd February,
: 16th July

SUPREME COURT – Slip Rule - nature of application - whether application made pursuant to the inherent jurisdiction of the Court or under ss. 155 (2) (b) or 155 (4) Constitution - whether application made before the same Judges - whether leave to apply is required

Facts:

This is a slip rule application to reopen a decision of the Chief Justice sitting as a single Supreme Court Judge. That decision was to dismiss two (2) applications for leave to review decisions of the National Court concerning an Election Petition. In the course of hearing the applications to reopen, the Chief Justice decided that the determination of certain issues would assist in the resolution of these applications. The applications were adjourned for the parties to prepare. This Court was constituted to continue to hear the applications. In determining four issues referred;

Held:

1. A slip rule application is to correct a glaring error or mistake in a judgment or order of the Court. Such a mistake would be either clerical, an accidental omission in a judgment or order or would be a misapprehension of fact or law (Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752)

2. A slip rule application to this Court cannot be made under s. 155 (2) (b) Constitution as that subsection concerns this Court's inherent power to review judicial acts of the National Court. Section 155(4) Constitution also does not provide the opportunity for a slip rule application to be made to the Supreme Court to reopen one of its decisions.

3. A slip rule application must be made before the same Supreme Court constituted by the same judge or judges who heard and determined the appeal or review.

4. The very nature of a slip rule application precludes the necessity for leave.

5. These applications are referred back to the Chief Justice for him to determine including the question of costs.

Cases cited:

Autodesk Inc. v. Dyason (2) [1993] HCA 6, (1993) 176 CLR 300, (1993) 67 ALJR 270
Richard Wallbank and Jeanette Minifie v The State [1994] PNGLR 78
R v. Bow Street Metropolitan Stipendiary Magistrate & Ors, ex parte Pinochet Ugarte (No. 2) [1999] UKHL 1; [1999] 1 All ER 577 at 585, [1999] UKHL 52
Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752
James Marabe v. Tom Tomiape & Anor (No. 2) (2007) SC856
Wio-Kin Investments Ltd v. Rex Paki & Anor (2008) SCA 141/05, unnumbered and unreported, delivered 27th November 2008
MVIT Ltd v. Yama Security Services Ltd (2009) SC1004

Counsel:

SC Rev 55 of 2008

Mr. R. William, for the First and Second Applicants
Mr. A. Manase, for the First Respondent
Mr. B. Lomai, for the Second Respondent

SC Rev 56 of 2008

Mr. B. Lomai, for the First Applicant
Mr. R. William, for the Second and Third Applicant
Mr. A. Manase, for the Respondent

16th July, 2010

1. BY THE COURT: The applicants in both proceedings have applied under the slip rule to reopen a decision of the Chief Justice sitting as a single Supreme Court Judge. That decision was to dismiss two (2) applications for leave to review decisions of the National Court concerning an Election Petition. In the course of hearing the applications to reopen, the Chief Justice decided that the determination of certain issues would assist in the resolution of these applications. The applications were adjourned for the parties to prepare. This Court was constituted to continue to hear the applications. After hearing counsel on the issues posed by the Chief Justice, we reserved for consideration. We now deliver our decision on those issues.

2. The issues referred for determination are:

a) What is the nature of an application under the slip rule principle (slip rule application)?

b) Whether a slip rule application may be made under s 155 (2) (b) and or s 155 (4) Constitution.

c) Whether a slip rule application should be made before the Supreme Court (Court) constituted by the same judges which heard and determined the appeal or review. If not, under what circumstances should a slip rule application be made before a Supreme Court constituted by different judge(s).

d) Whether leave to apply for a review of the decision of the Supreme Court under the slip rule principle should be separately sought and obtained.

e) If leave is required, whether the leave application should be made before the Court constituted by the same judge(s) which made the decision or should it be made before a single judge or judges irrespective of whether the judge or judges were members of the Court which made the decision under review or reconsideration.

What is the nature of an application under the slip rule principle (slip rule application)?

3. As to the nature of an application under the slip rule principle, there are numerous authorities of this Court concerning applications for it to reopen its decisions. A slip rule application is to correct a glaring error or mistake in a judgment or order of the Court. Such a mistake would be either clerical, an accidental omission in a judgment or order or would be a misapprehension of fact or law. In Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752, the Supreme Court considered cases dealing with slip rule applications, beginning with Richard Wallbank and Jeanette Minifie v The State [1994] PNGLR 78. In Sir Pato Kakaraya, (supra), the Supreme Court defined 'The Slip Rule' when it made reference to Osborne's Concise Law Dictionary Sixth Edition p307 where it is stated:

"Slip Rule – clerical mistakes, accidental omissions etc in judgments and orders may be corrected by the Court at any time on application by motion or summons".

4. The slip rule is part of the common law of England. The Underlying Law Act adopts the common law and provides the Supreme Court with the inherent power to hear slip rule applications and to set aside its own decisions irrespective of the jurisdiction under which the original decision was made: James Marabe v. Tom Tomiape & Anor (No.2) (2007) SC856. In regard to the ability of the Supreme Court to reopen its decision, this power is not conferred by provisions of the Constitution: Marabe (supra).

5. The position is the same in other common law jurisdictions. In England in R v. Bow Street Metropolitan Stipendiary Magistrate & Ors, ex parte Pinochet Ugarte (No. 2) [1999] UKHL 1; [1999] 1 All ER 577 at 585, [1999] UKHL 52, Lord Browne-Wilkinson, in an opinion agreed to by the other Law Lords, said:

"In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered....... However, it should be made clear that the House will not reopen any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure. Where an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong."

6. Notwithstanding that Pinochet Ugarte (supra) concerned a petition to set aside a previous order of the House on the ground that there was an apprehension of bias in respect of one of the Law Lords, the principle as to the inherent jurisdiction of an ultimate court of appeal is apposite.

7. In Australia, the High Court considered the issue in Autodesk Inc. v. Dyason (2) [1993] HCA 6, (1993) 176 CLR 300, (1993) 67 ALJR 270, a decision that has been cited with approval in numerous decisions of this Court. Mason CJ said at 271:

"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 emphasised 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 a 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 the 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 back door method by which unsuccessful litigants can seek to re-argue their cases."

(our emphasis)

8. In the decision of this Court in James Marabe (supra), the history of slip rule applications made to the Supreme Court was considered. As at the date of Marabe (supra), there had been only two (2) successful slip rule applications made. In both cases the decisions were of this Court exercising its review jurisdiction under s. 155 (2) (b) Constitution in respect of election petitions.

9. Since then we are aware of three (3) further slip rule applications including Marabe (supra), one of which was successful: Wio-Kin Investments Ltd v. Rex Paki & Anor (2008) SCA 141/05, unnumbered and unreported, delivered 27th November 2008. In that case the Court found that it had made a clear and manifest error on a critical issue in a determination of fact.

10. The principles governing slip rule applications were considered in Marabe (supra) and in our view have been consistently applied by this Court. Those principles are conveniently set out in Kakaraya (supra) and include consideration of the following principles:

"(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." consistently applied

11. The Court in Marabe (supra) added a further principle that:

"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."

12. The explanation for the further principle, with which we concur, was that the Court believed that it encapsulates the principles in Kakaraya (supra). The applicant must alert the court to an obvious error or mistake - something that stands out above all else. It must be a clear and manifest error of law or fact, that is not merely arguable, upon a critical issue. Further, the applicant must show that if the error had not been made, the result of the case would have been different. We refer to the decision of MVIT Ltd v. Yama Security Services Ltd (2009) SC1004, in this regard.

13. We respectfully agree that the principles set out in Kakaraya (supra) together with the further principle in Marabe (supra) are the principles that govern slip rule applications to the Supreme Court for it to reopen one of its decisions.

Whether a slip rule application may be made under s. 155 (2) (b) and or s. 155 (4) Constitution

14. A slip rule application to this Court cannot be made under s. 155 (2) (b) Constitution as that subsection concerns this Court's inherent power to review judicial acts of the National Court.

15. As to an application under s 155 (4) of Re Constitution, Kearney DCJ in Avia Aihi v.The State [1981] PNGLR 81 stated:

I agree with the views of Prentice CJ and Andrew J in Constitutional Reference No. 1 of 1979; Premdas v. Papua New Guinea [1979] PNGLR 329 that the Constitution, s.155(4), involves at least a grant of power to the courts. I consider that the sub-section gives unfettered discretionary power both to this Court and the National Court so to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of parties before them are protected.

16. What is the primary right of a party to a proceeding that has been adjudicated upon by the Supreme Court? There is no right of appeal or review from the Supreme Court - there is no primary right to be enforced. Hence, in our view s 155(4) Constitution does not provide the opportunity for a slip rule application to be made to the Supreme Court to reopen one of its decisions.

Whether a slip rule application should be made before the Supreme Court (Court) constituted by the same judges which heard and determined the appeal or review. If not, under what circumstances should a slip rule application be made before a Supreme Court constituted by different judge(s)

17. A slip rule application must be made before the same Supreme Court constituted by the same judge or judges who heard and determined the appeal or review. The very nature of a slip rule application is based on the premise that the particular judge or judges have made an accidental slip or mistake and that it should be for that judge or those judges to correct the slip.

18. If the particular judge or judges are unavailable, then it is for the Chief Justice pursuant to his administrative responsibility under s 169 (3) Constitution, to appoint another or other judges to sit on a slip rule application.

Whether leave to apply for a review of the decision of the Supreme Court under the slip rule principle should be separately sought and obtained

19. A slip rule application is in respect of an accidental slip or mistake. Its very nature precludes the necessity for leave. A requirement for leave in such circumstances would lead to unnecessary delay and duplication. Additionally, the same bench or Judge before whom the 'slip' is made will be familiar with the background of the matter, so an application for leave would serve no useful purpose as the application should only identify the slip and address the seven (7) principles referred to above, nothing more.

If leave is required, whether the leave application should be made before the Court constituted by the same judge(s) which made the decision or should it be made before a single judge or judges irrespective of whether the judge or judges were members of the Court which made the decision under review or reconsideration.

20. Given our view that leave should not be required it is not necessary to consider this issue.

Orders

21. These applications are referred back to the Chief Justice for him to determine including the question of costs, which we reserve.

_____________________________________________________________
SC Rev 55 of 2008

Nonggorr William Lawyers: Lawyers for the First and Second Applicants
Steeles Lawyers: Lawyers for the First Respondent
Lomai & Lomai Lawyers: Lawyer for the Second Respondent

SC Rev 56 of 2008

Lomai & Lomai Lawyers: Lawyers for the First Applicant
Nonggorr William Lawyers: Lawyers for the Second and Third Applicants
Steeles Lawyers: Lawyers for the Respondent