Atlas Corporation Ltd v State [2011] PGSC 42; SC1158 (25 May 2011)

SC1158

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 6 OF 2003

BETWEEN:

ATLAS CORPORATION LIMITED
(in voluntary liquidation)
Appellant

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Respondent

Waigani: Kirriwom, Hartshorn and Kawi JJ.
2011: April 28th
: May 25th
Application to confirm decision

Facts:

The appellant makes application for this court to confirm that its orders of 17th January 2005 correctly express the intention of the court and contain no errors, mistakes, slips or omissions. The respondent opposes the application. The appellant seeks the orders that it does as the then Solicitor General refused to endorse a certificate of judgment and the appellant is unable to seek satisfaction of its judgment as a consequence.

Held:

1. The appellant is not able to successfully rely upon Order 2 Rule 18 National Court Rules or sections 8 (1) (e) or 16 Supreme Court Act as the relief that the appellant seeks is merely to confirm orders already made and not to review, vary or alter such orders, and these provisions do not provide for that relief to be granted.

2. Section 155 (4) Constitution is only to be relied upon to enforce a primary right. In this instance the State no longer has a primary right. All rights of both parties were exhausted when this court determined the appeal and delivered the 2005 Orders.

3. This court has grave doubts that it has an inherent jurisdiction to vary or alter its delivered judgment following a defended appeal on the grounds that it was unfair and unjust and not in the National Interest.

Counsel

Mr. W. Frizzell, for the Appellant
Mr. W. Mapiso, for the Respondent

25th May, 2011

1. BY THE COURT: The appellant Atlas Corporation Limited (in voluntary liquidation) (Atlas), makes application for this court to confirm that it's orders of 17th January 2005 (2005 Orders) correctly express the intention of the court and contain no errors, mistakes, slips or omissions. The respondent, the Independent State of Papua New Guinea (State) opposes the application.

2. Atlas seeks the orders that it does as the then Solicitor General refused to endorse a certificate of judgment and Atlas is unable to seek satisfaction of its judgment as a consequence.

3. At the hearing the State, by its counsel, made an oral application for this court to invoke its inherent jurisdiction or to rely upon s. 155 (4) Constitution to reduce the amount that the State owes to Atlas under the 2005 Orders. The grounds relied upon are that sufficient reasons were not given by this court for the 2005 Orders and that the award of interest in the 2005 Orders was unjust, unfair and not in the National Interest.

Atlas's application

4. Atlas's application is reliant upon s. 8 (1) (e) and s. 16 Supreme Court Act. As to s. 8 (1) (e), it provides for this court to exercise any of the powers that may be exercised by the National Court on appeals or applications. Atlas submits that this court can review and alter a judgment before it is formally entered as a consequence of Order 12 Rule 16 National Court Rules. This rule provides that a minute of judgment or order can be reviewed in certain circumstances and directions are able to be given to vary the form and content of the minute.

5. Without considering whether this court has the power to review and alter its judgment as submitted by Atlas, we note that Atlas does not seek to question the 2005 Orders or to have the 2005 Orders reviewed. Indeed, Atlas seeks to have the 2005 Orders confirmed. Even if this court does have the jurisdiction as submitted by Atlas, in respect of which we do not give any opinion, this does not assist Atlas as Atlas does not wish us to review and alter the 2005 Orders. Similarly, Atlas is not able to successfully rely upon Order 2 Rule 18 National Court Rules which provides for the National Court to review an act or decision of the Registrar, as Atlas is not seeking to have any act or decision of the Registrar concerning the 2005 Orders, reviewed.

6. As to Atlas's reliance upon s. 16 Supreme Court Act, the two references to "judgement" in our view refer to the judgment of the National Court being appealed, notwithstanding the definition of "judgement" in s. 1 (1) Supreme Court Act. This is so as s. 16 Supreme Court Act is concerned with the jurisdiction of this court on the hearing of an appeal. Atlas is unable to rely upon this section for the relief that it seeks.

7. Consequently the relief sought by Atlas should be refused.

State's application

8. The oral application by counsel for the State was for this court to invoke its inherent jurisdiction or to rely upon s. 155 (4) Constitution to reduce the amount that is owed by the State to Atlas. The grounds relied upon are that sufficient reasons were not given by this court for the 2005 Orders and that the award of interest in the 2005 Orders was unjust, unfair and not in the National Interest. As to the amount of interest owing, if this is a concern to the State as submitted, and in our view it should be, we note that s. 16 (6) Frauds and Limitations Act 1988 was not raised before us and so we do not consider it.

9. No notice of the State's application was given to Atlas and no written submissions were filed. The application should be rejected for these reasons alone. As to reliance upon s. 155 (4) Constitution, this court has said on numerous occasions that s. 155 (4) Constitution can only be relied upon to enforce a primary right. In this instance the State no longer has a primary right. All rights of both parties were exhausted when this court determined the appeal and delivered the 2005 Orders.

10. As to invoking this court's inherent jurisdiction, we have grave doubts that this court has such a jurisdiction to vary or alter its judgment delivered following a defended appeal on the grounds that its decision was unfair and unjust and not in the National Interest. We are not minded to consider the application further given the circumstances of its making. We note that as to the court not giving sufficient reasons, no application has ever been made by the State pursuant to the Slip Rule. The State's application is refused.

Orders

11. The formal orders of this Court are:

a) the relief sought in the application of the appellant filed 21st June 2005 is refused,

b) the oral application of the respondent made on 28th April 2011 is refused,

c) each party is to pay its own costs.
________________________________________________

Warner Shand Lawyers: Lawyers for the Appellant
Office of the Solicitor-General: Lawyers for the Respondent