Kandapaki v ENGA Provincial Government [2015] PGSC 57; SC1463 (30 October 2015)

SC1463

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 1 OF 2011

POKO KANDAPAKI
First Appellant

ALBERT MINAKASO
Second Appellant

TIMOTHY TIMA
Third Appellant

WEDO LIMITED
Fourth Appellant

V

ENGA PROVINCIAL GOVERNMENT
Respondent

Waigani: Cannings J
2015: 27, 30 October

PRACTICE AND PROCEDURE – applications subsequent to disposal of proceedings – slip rule applications – necessity for leave – Supreme Court Rules 2012, Order 11, Rule 32.

The third and fourth appellants sought leave under Order 11, Rule 32(3) of the Supreme Court Rules 2012 to make a slip rule application in relation to the order of the Supreme Court to dismiss their appeal for want of prosecution. The applicant argued that the Court had slipped by failing to take into account that there were numerous directions given that provided an explanation for their apparent delay in prosecution of the appeal.

Held:

(1) To be granted leave to make a slip rule application in relation to an order disposing of proceedings, an applicant must (a) seek leave within 21 days after the order disposing of the proceedings and (b) satisfy the Court that the slip rule application would have a strong chance of success.

(2) The application was filed four months and one week after the order disposing of the proceedings, which was well outside the 21-day requirement of Order 11, Rule 32(1) of the Supreme Court Rules. The Court has no discretion to extend the period and therefore leave was refused.

(3) If the Court could entertain an application for leave that had been filed late, no good reasons were provided that would justify such a late application.

(4) In any event, a slip rule application did not have a strong chance of success as the appellants' application for leave failed to specify with particularity the alleged slips or misapprehensions of fact or law that permeated the decision to dismiss the appeal.

(5) Leave was refused, with costs awarded on a solicitor-client basis because of the frivolousness of the application.

Cases cited

The following cases are cited in the judgment:

Anderson Agiru v Aluago Alfred Kaiabe (2015) SC1412
David Arore v John Warisan (2008) SC1030
Enga Provincial Government v Poko Kandapaki & 3 Others, OS No 872 of 2005, 01.12.10 unreported
James Marape v Tom Tomiape & Anor (2007) SC856
Poko Kandapaki & 3 Others v Enga Provincial Government & 3 Others (2011) SC1139
Poko Kandapaki & 3 Others v Enga Provincial Government & 3 Others (2011) SC1140
Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752
Richard Wallbank and Jeanette Minifie v The State [1994] PNGLR 78
Trawen v Kama and Laimo (2010) SC1063

APPLICATION

This was an application under Order 11, Rule 32(3) of the Supreme Court Rules to make a slip rule application in regard to an order of the Supreme Court disposing of proceedings.

Counsel

J S Goava, for the third and fourth appellants
L Kandi, for the respondent

30th October, 2015

1. BY THE COURT: This is a ruling on an application by the third and fourth appellants for leave to make a slip rule application. They wish to make a slip rule application in relation to the order of the Supreme Court, constituted by Cannings J, Sawong J and Poole J, of 29 October 2013, to dismiss their appeal for want of prosecution.

THE APPEAL

2. Their appeal was against the National Court decision of Justice Ellis given at Wabag on 1 December 2010 (Enga Provincial Government v Poko Kandapaki & 3 Others, OS No 872 of 2005, 01.12.10 unreported). The case concerned a dispute about a parcel of land in Wabag. The respondent claimed ownership of the land and brought proceedings against the appellants who had entered the land and carried out improvements on it. The National Court heard the dispute and made a decision in favour of the respondent.

3. The appellants filed an appeal to the Supreme Court. The respondent then objected to the competency of the appeal on various grounds. On 6 December 2011 the Court (Cannings J, Gabi J, Yagi J) dismissed the objections in two separate decisions: (Poko Kandapaki & 3 Others v Enga Provincial Government & 3 Others (2011) SC1139 and Poko Kandapaki & 3 Others v Enga Provincial Government & 3 Others (2011) SC1140).

4. Almost two years later, on 29 October 2013, the Supreme Court (Cannings J, Sawong J, Poole J) heard an application by the respondent to dismiss the appeal for want of prosecution. Both the respondent and the appellants were legally represented. In an ex tempore decision the Court upheld the application and made the following order:

1. The application to dismiss the appeal for want of prosecution is granted.
   
2. The appeal, SCA No 1 of 2011, is therefore dismissed.
   
3. The appellants shall pay the costs of the entire appeal to the respondent on party-party basis, to be taxed if not agreed.
   

5. The effect of that order was to finally dispose of the appeal. The third and fourth appellants are aggrieved by the order. They are of the view that the Court made slips or mistakes, that the Court misapprehended the facts and the law. They wish to make a slip rule application regarding the order of 29 October 2013.

SUPREME COURT RULES, ORDER 11, RULE 32

6. Slip rule applications are governed by Order 11, Rule 32 of the Supreme Court Rules 2012, which states:

(1) An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding.

(2) A 'slip rule' application shall set out the nature of the slip and the finding that the applicant contends the Court should have made.

(3) A 'slip rule' application shall not be listed for hearing before the Court unless a Judge of the Court making the order from which the application arises, or that Court, has granted leave for the application to proceed.

7. The application before me is an application for leave under Rule 32(3). Rule 32 is a new rule introduced by the Supreme Court Rules 2012. It has no equivalent in the repealed Supreme Court Rules 1984. The only reported case of which I am aware, in which the Court has been called upon to consider an application for leave to make a slip rule application, is Anderson Agiru v Aluago Alfred Kaiabe (2015) SC1412.

8. In Agiru the Court (Salika DCJ, Mogish J, Cannings J) held that there are two preconditions to the grant of leave.

First the applicant must, in accordance with Rule 32(1), seek leave within 21 days after the order disposing of the proceedings.

Secondly the applicant must satisfy the Court that the slip rule application would have a strong chance of success. In forming that view the Court had regard to the criteria developed by Injia CJ in various cases dealing with applications for leave to seek review of decisions of the National Court in election petition matters, such as David Arore v John Warisan (2008) SC1030. The Court considered that the standard of satisfaction must be set rather high to deter frivolous slip rule applications and to enforce the principle of finality in litigation, the importance of which has been highlighted in a long series of decisions dealing with slip rule applications, including Richard Wallbank and Jeanette Minifie v The State [1994] PNGLR 78, Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752, James Marape v Tom Tomiape & Anor (2007) SC856 and Trawen v Kama and Laimo (2010) SC1063.

9. I adopt that approach and will consider whether the two preconditions have been met.

WAS LEAVE SOUGHT WITHIN 21 DAYS?

10. No. The application for leave was filed on 7 March 2014, which was four months and one week after the order of 29 October 2013. It was filed three months and two weeks late. Mr Goava, for the third and fourth appellants, conceded that this was a late application and asked for leave of the Court to extend the time. He was unable to convince me that I had any power to extend time or to in some way entertain the application despite it being filed late. I conclude for present purposes I have no such power.

11. Even if I were convinced that I had any discretion, I would not have exercised it in favour of the third and fourth appellants. No good reason has been provided for the application being filed late, in fact very late. The 21-day requirement has been imposed for a very good reason: to advance the finality of litigation and to oblige any party proposing to apply for leave to do so quickly. The failure to comply with Rule 32(1) is fatal to the application.

WOULD THE SLIP RULE APPLICATION HAVE A STRONG CHANCE OF SUCCESS?

12. No. The third and fourth appellants have filed a long-winded application for leave which tells a long story about the history of the litigation and about how the trial Judge, Justice Ellis, allegedly erred in law and how the grounds of appeal were strong and stood a good chance of success. But it failed to identify with precision how the Supreme Court slipped. I asked Mr Goava to take me to the part of the seven and a half-page application that stated the alleged slips of the Court. He referred me to two paragraphs on page 3, where, under the heading "Grounds", it is stated:

(i) The Supreme Court comprising Justices Cannings, Sawong and Poole unanimously dismissed the entire appeal for want of prosecution with costs, when on the court record there were numerous directions issued by the Court with the consent of the parties/counsels, which were either not complied with and or yet to be acted on. Such an oversight on the part of the Court is a glaring error or is taken or even a fatal miscarriage of justice, which seriously requires correction in the interests of justice.

(ii) The Supreme Court must in the exercise of its discretion under Section 155(4) of the Constitution, see fit to correct any such accidental omission or slip so that the applicants be afforded a reasonable opportunity to present its current appeal on its own merits, rather than being driven off the judgment seat by such a mistake of fact and or an omission by the Court.

13. Faced with such a vague and illusory statement of how the Court is alleged to have slipped, I can only conclude that the slip rule application does not have a strong chance of success. Mr Goava offered no written submissions and his oral submissions were unable to lend any more detail. Another point I must mention is that the appellants have not provided the Court with a transcript of the proceedings of 29 October 2013. So how can they expect to prove even an arguable case that the Court slipped?

CONCLUSION

14. Neither of the preconditions to the granting of leave is satisfied. Therefore leave is refused. Costs will follow the event. I will order that costs be on a solicitor-client basis as this issue was raised by Mr Kandi in his submission and because of the frivolousness of the application.

ORDER

(1) The application for leave, under Order 11, Rule 32(3) of the Supreme Court Rules 2012, to make a slip rule application in relation to the order of 29 October 2013, is refused.

(2) Costs of the application for leave are awarded to the respondent to be paid by the third and fourth appellants, on a solicitor-client basis, to be taxed if not agreed.

(3) Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Judgment accordingly,
____________________________________________________________

Sannel Lawyers: Lawyers for the First & Second Appellants
M S Wagambie Lawyers: Lawyers for the Respondent