Waim 85 Ltd v Independent State of Papua New Guinea [2015] PGSC 62; SC1470 (11 November 2015)

SC1470

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 30 OF 2009

WAIM NO 85 LIMITED
Appellant

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Respondent

RENDLE RIMUA,
SECRETARY, DEPARTMENT OF PETROLEUM & ENERGY
Second Respondent

Waigani: Cannings J,
2015: 29th October, 11th November

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

The appellant sought leave under Order 11, Rule 32(3) of the Supreme Court Rules 2012 to make a slip rule application in relation to the decision of the Supreme Court to dismiss its 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) file and serve the application 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) Precondition (a) was satisfied, but not precondition (b) as a slip rule application was determined to have no prospect of success.

(3) 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
James Marape v Tom Tomiape & Anor (2007) SC856
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
Waim No 85 Ltd v The State & Rimua (2015) SC1405

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 J Kama, for the appellant
T Tanuvasa, for the first respondent

11th November, 2015

1. CANNINGS J: Waim No 85 Ltd applies for leave to make a slip rule application in relation to the decision of the Supreme Court, constituted by Cannings J, Kassman J and Murray J, of 29th January 2015.
   
2. By that decision, Waim No 85 Ltd v The State & Rimua (2015) SC1405, the Supreme Court dismissed the appellant's appeal against the decision of the National Court, constituted by Justice Davani, to entirely dismiss proceedings against the respondents, in which the appellant sought damages of more than K100 million for breach of trusts, contracts and other arrangements. The appellant appealed on 18 grounds against the National Court's decision. It abandoned one and pursued 17. All 17 were dismissed by the Supreme Court.
   
3. The effect of the Supreme Court's decision was to finally dispose of the appeal. The appellant is aggrieved by that decision. It is of the view that the Court made slips or mistakes, that the Court misapprehended the facts and the law. It wishes to make a slip rule application regarding the decision of 29th January 2015.
   

SUPREME COURT RULES, ORDER 11, RULE 32

4. 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.

5. In Anderson Agiru v Aluago Alfred Kaiabe (2015) SC1412, it was held that that there are two preconditions to the grant of leave.
   
6. First, the applicant must, in accordance with Rule 32(1), seek leave within 21 days after the order disposing of the proceedings.
   
7. 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.
   
8. I adopt that approach and will consider whether the two preconditions have been met.
   

WAS THE APPLICATION FILED AND SERVED WITHIN 21 DAYS OF THE ORDER DISPOSING OF THE PROCEEDING?

9. The application for leave was filed on 16th February 2015, which was 18 days after the decision of 29th January 2015. The application was thus filed in time. Was it served within 21 days? It is hard to say. There is no affidavit of service or any other evidence of the application being served within 21 days. As the first respondent did not take issue with this requirement, I presume that the application was served in time. I find that the requirements of Order 11, Rule 32(1) have been complied with.
   

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

10. This requires an assessment of each of the eight grounds of the proposed slip rule application.
    

Ground 1: slips and errors in determining the abuse of process grounds

11. This ground states:
    

On 29th January 2015 at Waigani, the Supreme Court comprising Cannings J, Kassman J and Murray J slipped and made errors while deliberating on 17 grounds of appeal and in particular, Grounds 10, 11, and 15 entitled "abuse of process by first defendant" thus was in error and slipped when these grounds were initially raised at the lower court hearing by the appellant and the primary Judge failed to consider the same thereby erroneously led the Supreme Court to the following findings:

(a) That the Notice of Motion filed on 2nd December 2008 to dismiss proceedings complaint of were not in the same terms as the earlier dismissed Amended Notice of Motion filed on the 19th of August 2008; and

(b) The said Notice of Motion was not objected to by the appellant; and

(c) The learned Judge did consider the objections,

thereby dismissed this ground of appeal in glaring errors of both law and fact.

12. There is a problem with this ground in that it wrongly refers to the three grounds of appeal, which were regarded as the abuse of process grounds, as grounds 10, 11 and 15. In fact the three relevant grounds of appeal were 10, 11 and 12. I will disregard that slip on the part of the appellant. It seems to be a typographical error. I will regard all references to ground 15 as a reference to ground 12.
    
13. By ground 10 of the appeal the appellant argued that the primary Judge erred by 'not considering' the fact that the motion that her Honour upheld, resulting in dismissal of the proceedings, was in similar terms to an earlier motion that had sought the same relief, which had been dismissed for want of prosecution. By ground 11 of the appeal it was argued that the primary Judge erred by focussing on the issue of res judicata rather than the issue of abuse of process. Ground 12 of the appeal was in similar terms to ground 11.
    
14. In determining ground 10 the Court held that it was not correct to say that the primary Judge did not consider the matters raised by the appellant. Her Honour did consider them, in some detail, setting out the facts and applying the law in a clear and coherent fashion. Her Honour pointed out that the first respondent's notice of motion filed on 2nd December 2008 was in similar, but not the same, terms as a notice of motion, also seeking dismissal of the proceedings, filed on 19th August 2008. She noted, having considered a written submission by the appellant, that the earlier motion was dismissed for want of prosecution on 5th November 2008. Her Honour then dealt with the primary argument put by the appellant: that the motion of 2nd December 2008 raised issues that were res judicata. The Supreme Court agreed with her Honour that the doctrine of res judicata did not apply as, when the National Court dismissed the first motion for want of prosecution, it did not determine the merits of the motion.
    
15. In determining ground 11, the Supreme Court noted that the arguments of the appellant were a repetition of those in ground 10. The Court found that the primary Judge correctly emphasised that the appellant's earlier motion for dismissal was not heard or determined on its merits. The doctrine of res judicata did not apply. Her Honour also dealt with the argument that there was an abuse of process due to the first respondent's failure to apply to set aside the order of 5th November 2008. The Court held that her Honour correctly found that there was no abuse of process.
    
16. As for ground of appeal 12, it was a rehash of grounds 10 and 11 and was summarily dismissed.
    
17. The appellant is arguing through its slip rule application that the Supreme Court slipped by finding that:
    
    • (a) the notice of motion filed on 2nd December 2008 was not in the same terms as the notice of motion filed on 19th August 2008;
      
    • (b) the notice of motion of 2nd December 2008 was not objected to by the appellant; and
      
    • (c) the primary Judge considered the objections of the appellant.
      
18. As to (a), the Supreme Court heard argument at the appeal hearing that in fact the two notices of motion were the same. The Court considered the argument and found that though similar, the two notices of motion were not the same. In any event, even if they were regarded as the same, it would have made no difference to the determination of any of grounds 10, 11 or 12, as the first notice of motion was not dismissed on its merits.
    
19. As to (b), the Supreme Court did not find that the appellant did not object to the second notice of motion.
    
20. As to (c), it is correct that the Supreme Court held that the primary Judge had considered the arguments underpinning ground of appeal 10. That was an obviously correct view.
    
21. I find no merit in any of the arguments in ground 1 of the application. It has no prospect of success.
    

Ground 2: slip in deliberating on ground 10 of the appeal

22. This ground states:
    

That the Supreme Court fell into error, thus slipped when deliberating on Ground 10 that the Notice of Motion filed on 2nd December 2008 was not in the same terms as the earlier Amended Notice of Motion, thereby failed to find that the circumstances were the same as that raised by the same Judge in Paradise Contractors Limited v Milne Bay Provincial Government and Ors (2010) N3975. This is a glaring error on the part of the primary Judge who contradicted herself in this matter of appeal.

23. The argument about the second notice of motion being in the same terms as the earlier notice of motion was fully addressed and determined by the Supreme Court. Nothing has changed. There is no worthwhile argument to say that the Court slipped. Ground 2 of the application has no prospect of success.
    

Ground 3: further slip in deliberating on ground 10 of the appeal

24. This ground states:
    

That the Supreme Court fell into error thus slipped when deliberating on Ground 10 to uphold the lower court's finding that the appellant had not raised any objections on the Notice of Motion filed in the same terms when there was clear evidence on the face of court record that the appellant had filed a Notice of Objection to the subject Notice of Motion [Appeal Book 2, document 27] and submission [Appeal Book 2, document 32] was filed. The appeal court should have found that the appellant did object to the Notice of Motion and further find that the appellant did not argue its case as its counsel was denied appearance by the learned Judge therefore the finding that the appellant did not object to the Notice of Motion was a glaring error by the Court in the face of the Court and a denial of the appellant's right of hearing (justice).

25. This argument is a rehash of grounds 1 and 2 of the application. It has no prospect of success.
    

Ground 4: slip in finding that the primary Judge had considered the appellant's objection

26. This ground states:
    

That the Supreme Court fell into error thus slipped by deliberating that the primary Judge did consider the appellant's objection when she did not, because had the learned Judge did consider the appellant's objection, the court would have found in favour of the appellant in the same manner as it did in the case of Paradise Contractors Limited v Milne Bay Provincial Government and Ors (2010) N3975. The consequences of this finding by the primary Judge was a result of the appeal instituted by the appellant and therefore there was a glaring error on the part of the Court, not to consider that in the circumstances of the case, the respondents' Notice of Motion should have been denied.

27. This argument is a rehash of grounds 1, 2 and 3 of the application. It has no prospect of success.
    

Ground 5: slip in finding that the primary Judge had correctly allowed the motion for dismissal to be heard

28. This ground states:
    

That the Supreme Court fell into error thus slipped by deliberating that the learned Judge was right in allowing the Notice of Motion to be argued when it had been earlier dismissed and orders taken out and therefore the order was required to be set aside as the Court did in the case of Paradise Contractors Limited v Milne Bay Provincial Government and Ors (2010) N3975. Whilst the Supreme Court admonished the primary Judge's findings in that case, it erred in holding that this was a case that fell within the circumstances and should have been properly dealt with in the same manner. The Court in dismissing this ground created further slipped in not finding the circumstances were similar, except that in this case, application was made a month later.

29. This argument is a rehash of grounds 1, 2, 3 and 4 of the application. It has no prospect of success.
    

Ground 6: slip in determining ground 15

30. This ground states:
    

In respect of Ground 15, the Supreme Court slipped and was in error when it did not consider the fact that the appellant had filed Notice of Objection and Submissions submitting that the order dismissing the Amended Notice of Motion should be first set aside therefore contradicted the holding that the primary Judge had decided rightly without reviewing the primary Judge's decision whether or not proper consideration was applied in not dismissing the respondents' Notice of Motion and excepting it as not in similar terms, therefore slipped in failing to consider the applicable tests or considerations in setting.

31. This argument is a rehash of grounds 1, 2, 3, 4 and 5 of the application. It has no prospect of success.
    

Ground 7: slip in finding that the primary Judge could dismiss the proceedings without ordering the plaintiff to amend its statement of claim

32. This ground states:
    

The Supreme Court slipped and was in error when it held that the primary Judge could dismiss a cause of action without making any orders to amend pleadings when it found that the Statement of Claim was untenable and should have been mindful of allowing the plaintiff to file an Amended Statement of Claim as was the case in SC905 Philip Takori & Ors v Simon Yagari & 2 Ors.

33. This is an interesting argument but I cannot recall it being one of the grounds of appeal to the Supreme Court. At this juncture it is worth recalling what the Supreme Court has on a number of occasions said about the purpose of slip rule applications. In Marabe v Tomiape (2007) SC856 the Court held that seven general principles govern determination of a slip rule application:
    

(a) there is a substantial public interest in the finality of litigation;

(b) on the other hand, any injustice should be corrected;

(c) the court must have proceeded on a misapprehension of fact or law;

(d) the misapprehension must not be of the applicant's making;

(e) the purpose is not to allow rehashing of arguments already raised;

(f) the purpose is not to allow new arguments that could have been put to the court before;

(g) 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.

34. The argument put in support of ground 7 of the present application offends against (f): it is a new argument that could have been put to the Supreme Court before, but it was not, so it must not be allowed to be made now.
    

Ground 8: slip in creating new precedent

35. This ground states:
    

The Court slipped and erred in creating new precedent whereby it held that anyone could file an application challenging jurisdiction of the Court out of time after the time required to do so had expired and an earlier Notice of Motion in similar terms had been dismissed for want of prosecution and therefore did so contrary to the National Court Rules Order 7 rr 2, 6, 7, 8 and 9, in that it erred in holding that a defendant may file a Notice of Motion in similar terms after its earlier Notice of Motion had been dismissed for want of prosecution and that order had not been set aside without first seeking to set aside the Court order dismissing the Notice of Motion and reinstating the Notice of Motion, therefore such holding is bad precedent.

36. This is a criticism of the Supreme Court's decision rather than an argument that the Court slipped. All of the arguments referred to in this rather long-winded ground of application were put before the Supreme Court at the hearing of the appeal and they were dealt with exhaustively by the Court. This ground of the application has no prospect of success.
    

CONCLUSION

37. Though the first precondition to granting leave has been met, the second has not. None of the grounds of the application discloses any obvious misapprehension of fact or law. The proposed slip rule application has no prospect of success. Leave must be refused. Costs will follow the event. I will order that costs be on a solicitor-client basis because of the frivolousness of the application. The appellant has fallen well short of showing that a slip rule application had a strong prospect of success.
    

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 29th January 2015, is refused.

(2) Costs of the application for leave are awarded to the first respondent to be paid by the appellant, on a solicitor-client basis, which shall, if not agreed, be taxed.

Judgment accordingly.

_______________________________________________________________
Jerry Kama Lawyers: Lawyers for the Appellant
Solicitor-General: Lawyer for the First Respondent