Yawari v Agiru [2010] PGSC 25; SC1074 (3 September 2010)

SC1074

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SC Review No. 24 of 2008

SLIP RULE APPLICATION FOR REVIEW PURSUANT TO SCHEDULE 2.2
OF THE CONSTITUTION AS PART OF THE UNDERLYING LAW

IN THE MATTER OF AN APPLICATION BY HAMI YAWARI TO RECALL
AND REVIEW A DECISION OF THE SUPREME COURT TO DISMISS AN ELECTION
PETITION REVIEW FILED PURSUANT TO SECTION 155 (2) (b) OF THE CONSTITUTION

BETWEEN:

HAMI YAWARI
Applicant

AND:

ANDERSON AGIRU
First Respondent

AND:

DAVID WAKIAS
Second Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Sakora, Cannings and Hartshorn, JJ.
2010: 1st, 3rd September

Slip Rule Application – whether Application competent – whether any glaring mistake or error or misapprehension of law or fact demonstrated

Facts:

This is an application by Hami Yawari pursuant to the 'slip rule' to make a correction to the decision delivered on 6th November, 2008. That was a decision 'dismissing Mr. Yawari's application to review 'an election petition which was dismissed by the National Court.

Held:

1. Leave of this court is not necessary to make application under the slip rule

2. An application under the slip rule is not a review. It is an application to correct a glaring error or mistake. Such a mistake being either clerical, an accidental omission in a judgment or order, or a misapprehension of fact or law: Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752, Trawen v. Kama (2010) SC1063.

3. The amended application seeks a review. Mr. Yawari is not entitled to another review and this court is unable to conduct another review.

4. The amended application is incompetent as it does not correctly make the appropriate application under the slip rule, and the relief sought is not the correct relief that should be sought on such an application. The amended application should be dismissed.

Cases cited:

Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752
James Marabe v. Tom Tomiape & Anor (2007) SC856
Trawen v. Kama (2010) SC1063

Counsel:

Mr. I. P. Mambei, for the Applicant
Mr. G. J. Sheppard and Ms. C Copland, for the First Respondent
Mr. A. Kongri, for the Second and Third Respondents

3rd September, 2010

1. BY THE COURT: The applicant Mr. Hami Yawari purportedly makes application pursuant to the slip rule to make a correction to our decision, delivered on 6th November 2008: In the Matter of Hami Yawari and Ors (2008) SC948. That decision dismissed Mr. Yawari's review of the National Court's dismissal of his election petition.

2. Mr. Yawari's amended application though, seeks to review a decision of this court under Schedule 2.2 Constitution. The title and heading of the amended application indicate a recall and review of a decision of this court under the slip rule. The relief sought includes that leave be granted to proceed with the application to review and that leave be granted to further review the findings of the members of this court in this matter.

3. After deficiencies with the amended application were brought to the attention of counsel for Mr. Yawari, an application for an adjournment was made to facilitate a further amendment to the amended application and if an adjournment was not granted an application was made to amend the amended application.

4. Both applications were refused as amongst others, no notice of any of the applications had been given to the other parties.

5. As mentioned, the relief sought in the amended application seeks leave to proceed with an application to review and leave to further review the findings of this court. Leave of this court is not necessary to make application under the slip rule. None of the relief sought would be granted if the slip rule application were successful. Further, the amended application seeks a review. Mr. Yawari is not entitled to another review and this court is unable to conduct another review. An application under the slip rule is not a review. It is an application to correct a glaring error or mistake. Such a mistake being either clerical, an accidental omission in a judgment or order, or a misapprehension of fact or law: Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752, Trawen v. Kama (2010) SC1063.

6. For the above reasons, in our view, the amended application is incompetent and should be dismissed.

7. If the amended application were not dismissed and this court proceeded on the basis that it was a proper and correct application under the slip rule, the main ground relied upon by Mr. Yawari, if we understand correctly, is that he had complied with the order of the Supreme Court of 20 October 2008 (subject court order) which extended the time by which he was required to compile and serve the Review Book on each respondent; contrary to what was stated amongst others, in our decision.

8. At paragraph 6 of the decision we stated that:

"6. It is not in dispute that:

a) the Review Book was not compiled and served in the time permitted under the court order of 20th October 2008 and the Supreme Court Election Petition Review Rules"

and at paragraphs 17 and 18:

"17. In this instance, there is no dispute that Mr. Yawari has not complied with Rule 22 which requires that he compile and serve the Review Book within 14 days after the Directions Hearing which was actually 17 days, given the 3 day extension granted by the court on 20th October.

18. Mr. Yawari submits that he could not comply because of other persons actions. Even if his non-compliance was a result of other persons actions, the fact remains that no application was made under Rule 32, either before 23rd October, or since, for dispensation with the requirements of Rule 22. If Mr. Yawari attributes the reason for there being no application made under Rule 32 to his former lawyers (or his present lawyers as no such application has been filed to date) this is not in our view a satisfactory reason. It has been held on numerous occasions in this jurisdiction that the failure of a person's lawyer is not a good reason for the granting of an extension of time: Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110."

9. Even if Mr. Yawari had complied with the subject court order, and we make no comment on that apart from noting that it is apparent that the lawyers for the second and third respondents were not served with the Review Book as was required, it was submitted to this court by counsel for Mr. Yawari that in fact Mr. Yawari had not complied with the subject court order.

10. In the "Applicant's Extract of Submissions" at p 207 of the Review Book, at p 212 paragraphs 2 and 3, it is submitted in paragraph D 2, "it is respectfully submitted, firstly that the default on not complying with the orders of the 20th October 2008 is not intentional.", and in paragraph D 3 "... that there is a reasonable explanation for the default." (subject submissions).

11. Counsel for Mr. Yawari attempted to submit to the effect that the subject submissions should not have been accorded much weight in the absence of evidence supporting the subject submissions. We note in this regard, the absence of any submissions by counsel for Mr. Yawari as to why the subject submissions would have been made in the absence of such evidence. In any event, it is clear that the subject submissions were made.

12. Of the seven principles governing slip rule applications considered in James Marabe v. Tom Tomiape & Anor (2007) SC856, Kakaraya (supra) and listed in Trawen (supra), the fourth is pertinent here. That principle is that the misapprehension of fact or law must not be of the applicant's making.

13. It is clear that this court relied upon the subject submissions as it was entitled to do. If the submission was factually incorrect, that was the fault of Mr. Yawari's counsel. As such it offends against the fourth principle governing slip rule applications. This court did not make the slip about which complaint is made. If there was a slip, it was by Mr. Yawari's counsel.

14. As to other grounds relied upon by Mr. Yawari:

a) (i) not taking into account evidence that Mr. Yawari's previous lawyers had intentionally done or not done things to have the Review summarily determined:

(ii) this court dealt with submissions concerning the actions or otherwise of Mr. Yawari's previous lawyers. We refer to paragraph 18 of our decision reproduced above. In our view this ground is a re-argument of one made at the review but in a different form.

b) (i) stopping Mr. Yawari's lawyer midway through his submission and thereby not affording Mr. Yawari the opportunity to properly address the court:

(ii) there is no evidence of this occurring and we note in this regard that a copy of the transcript of the review is not included in the Review Book, so this allegation cannot be verified.

(iii) we are not satisfied that any glaring error or mistake or misapprehension of fact or law has been demonstrated.

(c) (i) failing to address any aspect of the evidence going to show lack of due diligence in considering the summary determination application:

(ii) this was considered in paragraphs 19 and 20 of our decision:

"19. As to not proceeding with the pre-hearing conference on 28th October and not applying for dispensation under Rule 32 of the requirements of Rule 26 concerning pre-hearing conferences, no submissions have been made at all to this court on behalf of Mr. Yawari.

20. As stated, it is not disputed that Mr. Yawari has not complied with 2 mandatory Rules. The first limb of Rule 30 is therefore satisfied. The continuing breach of those Rules, together with the failure to apply for the dispensation of the requirements of those Rules under Rule 32 satisfies the second limb of Rule 30 as it constitutes not prosecuting the review proceeding with due diligence."

This is a re-argument of one made at the review but in a different form.

Conclusion

15. The amended application is incompetent as it does not correctly make the appropriate application under the slip rule, and the relief sought is not the correct relief that should be sought on such an application. The amended application should be dismissed.

16. Even if the amended application was not dismissed and the amended application proceeded on the basis that it was made correctly, Mr. Yawari has not demonstrated any glaring mistake or error or misapprehension of fact or law that was made otherwise than by a misapprehension of his or his counsel's own making.

17. As to costs, notwithstanding that we would have been receptive to an application upon notice by the respondents for costs to be awarded against the applicant on a solicitor client basis, given the quite unmeritorious prospects of success of the application, no such costs application was made. Accordingly we award costs on a party-party basis only.

Orders

a) The amended application of the applicant dated 5th January 2009 is dismissed.

b) the costs of and incidental to the application are to be paid by the applicant to the respondents on a party-party basis to be taxed if not agreed.
_______________________________________________
Henaos Lawyers: Lawyers for the Applicant
Young & Williams Lawyers: Lawyers for the First Respondent
Nonggorr & Williams Lawyers: Lawyers for the Second and Third Respondents