Saga v Papua New Guinea Law Society [2010] PGSC 29; SC1070 (3 September 2010)

SC1070

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSITCE]

SCA NO. 97 OF 2006

BETWEEN:

ROBERT SAGA
Applicant/Appellant

AND:

PAPUA NEW GUINEA LAW SOCIETY
Respondent

Waigani: Gavara-Nanu, Lenalia, David, JJ
2010: 1st & 3rd September

PRACTICE & PROCEDURE – Slip Rule – Application to reopen decision – Principles regarding slip rule application and the purpose of a slip rule application discussed.

Cases cited:

Papua New Guinea Cases
Andrew Traven, Electoral Commission of Papua New Guinea –v- John Itanu,
Application by Sir Pato Kakaraia (No.2) (2004) SC752
Returning Officer for South Bougainville Open Electorate and 3 Ors SC1063
Richard Wallbank and Jeanette Minifie –v- The State [1994] PNGLR 78.

Other cases cited:
Autodesk Inc –v- Dyason [1993] HCA 6; (1993) 67 ALJR 270

Counsel:
Applicant In person
G.Poole, for the respondent

1. BY THE COURT: The applicant is making this application under the slip rule for the Court to reopen its decision to correct certain errors which the applicant contends were made by the Court in the decision which was given on 2nd September, 2009; see Robert Saga –v- Papua New Guinea Law Society SC986.
   
2. In view of the recent decision given by the five member bench of this Court in Andrew Traven, Electoral Commission of Papua New Guinea –v- John Itanu, Returning Officer for South Bougainville Open Electorate and 3 Ors SC1063, in which the Court said a slip rule application should be made before the same Supreme Court judge or judges against whose decision the application is made, it is appropriate that we should comment on the membership of this bench. The original bench was constituted by the late Chief Justice Sir Mari Kapi as the President and the other two members who are sitting on this bench, namely, Gavara-Nanu and Lenalia JJ. His Honour, Justice David who is a member of this bench was therefore not a member of the original bench.
   
3. We are of the firm opinion that given that two members of the original Supreme Court bench are members of this bench and that the decision we are about to deliver is unanimous, the Court is properly constituted and that it has power to rule on the application before us.
   
4. For purposes of this application, we should at the outset state the purpose of a slip rule application, which is to correct a glaring error or mistake in a judgment or order of the Court. Such an error or 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 and Andrew Traven, Electoral Commission of Papua New Guinea –v- John Itanu, Returning Officer for South Bougainville Open Electorate and 3 Ors (supra). See also, Richard Wallbank and Jeanette Minifie –v- The State [1994] PNGLR 78.
   
5. These authorities restated and adopted the principles applied in Autodesk Inc –v- Dyason [1993] HCA 6; (1993) 67 ALJR 270, more particularly the observations made by Mason CJ at 271. The essence of what his Honour said was that, whilst there is the public interest to see finality of litigation, the Court would not be precluded from taking the exceptional step of reviewing and 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. This Court as the final court of appeal has the capacity to rectify what it may perceive to be an apparent error arising from some miscarriage in its judgment.
   
6. However, the slip rule application is not to invoke the jurisdiction of the Court to re-agitate arguments already considered by the Court for its decision or to present or raise arguments or issues which the applicant has failed to present or raise in the original hearing.
   
7. It should also be emphasized that it is not the purpose of a slip rule application to provide a back door method by which the applicant should have another bite of the cherry.
   
8. A slip rule application is a common law remedy or right, which is part of the underlying law by virtue of Schedule 2.2 of the Constitution and the Underlying Law Act, 2000. It is not a statutory right or remedy it is also not a right that can be enforced under the Constitution, such as s. 155 (2) (b) or s. 155 (4), which is what the applicant is trying to do here.
   
9. It should be noted that the decision of the Court which the applicant is seeking to reopen was the decision to dismiss the appellant's appeal on the basis that the appeal was not competent. The notice of objection to competency of the appeal raised by the respondent was on the basis that appeal was improperly grounded under s. 155 (2) of the Constitution and that the Form used for notice of appeal did not comply with Form 8 of the Supreme Court Rules. The respondent therefore argued that the appeal was an abuse of process. It was also argued that the appeal was incompetent because the matters raised in the appeal were not raised before the trial judge and further, that the appellant did not appeal against the decision of the Lawyers Statutory Committee as provided under s. 58 of the Lawyers' Act, 1986.
   
10. The Court accepted the argument by the respondent and dismissed the appeal as being incompetent, the Court said the applicant could not rely on s. 155 (2) of the Constitution and at the same time rely on s. 14 of the Supreme Court Act. The applicant had to choose between review under s. 155 (2) of the Constitution and appeal under s. 14 of the Supreme Court Act. By relying on both provisions, the appeal in our opinion amounted to an abuse of process and was incompetent.
    
11. The Court also gave an added reason why it dismissed the appeal which was that it was the view of the Court that the appeal was lodged out of time. This apparently was an error. However, even after correcting that error, the applicant still has not demonstrated an error in the decision to dismiss the appeal because the appeal was incompetent. Thus even after correcting the error in relation to the decision that the appeal was filed out of time, the appeal would still be incompetent.
    
12. The applicant has also argued that the Court erred in not allowing the parties to making submissions on substantive issues or merits of the appeal, even if this was the case, it was still within the Court's powers, not to hear arguments on the merits or substantive issues of the appeal once issue of competency of the appeal was raised. That is what the Court did for which we see no slip or error by the Court.
    
13. The other ground for this application relates to s. 54 of the Lawyers' Act and how the applicant says the respondent had acted ultra vires by imposing a penalty prescribed by that section. This ground is irrelevant because this application is not for the court to consider whether the respondent had acted properly when deciding to strike him off the Roll. That is outside the scope of this application as the applicant is here trying to raise an issue which he failed to raise before the National Court.
    
14. The applicant is seeking that the appeal be reinstated, however, for reasons already given, we cannot grant this relief. He is also seeking that his rights and privileges as a lawyer be restored again for the reasons given we also cannot grant this relief.
    
15. The applicant has also argued that the respondent was wrongly named in the appeal and had no standing because it is the actions of the Lawyers Statutory Committee which were being challenged. We reject this argument because the applicant did not raise this issue in his appeal, and indeed his appeal was against the respondent, he cannot now turn around and complain of a matter which he himself adopted. However, even if we are wrong on this view we find that the respondent is empowered under s. 8 (d) of the Lawyers Act, 1986, to institute such actions as it may deem appropriate against a lawyer for a breach of the Lawyers Act, or the Professional Conduct Rules.
    

16. For the foregoing reasons the application is dismissed.

17. The applicant will the pay the respondent's costs and incidentals to this application.

Orders accordingly.

___________________________________
Applicant in person
O'Briens Lawyers: Lawyers for the Respondent