National Superannuation Fund Ltd v Yawenaik Holdings Ltd [2019] PGSC 10; SC1759 (14 January 2019)

SC1759

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 3 of 2018

BETWEEN:
NATIONAL SUPERANNUATION FUND LIMITED
Appellant

AND:
YAWENAIK HOLDINGS LIMITED also known as YAWANAIK HOLDINGS LIMITED
First Respondent

AND:
CHRIS MANDA in his capacity as SURVEYOR GENERAL
Second Respondent

AND:
ROMILLY KILA PAT as a delegate of the MINISTER OF LANDS AND PHYSICAL PLANNING
Third Respondent

AND:
HON. BENNY ALLAN in his capacity as MINISTER OF LANDS AND PHYSICAL PLANNING
Fourth Respondent

AND:
HON. POWES PARKOP in his capacity as Chairman and other Members of the NATIONAL CAPITAL DISTRICT COMMISSION PHYSICAL PLANNING BOARD
Fifth Respondent

AND:
BENJAMIN SAMSON in his capacity as REGISTRAR OF TITLES
Sixth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Respondent

AND:
SANAMO GROUP LIMITED
Eighth Respondent

AND:
KEITH LAHUI, Chairman & other Members of the PAPUA NEW GUINEA LAND BOARD
Ninth Respondent

AND:
DELTA CORPORATION LIMITED
Tenth Respondent

AND:
ALLAN BANIYAMI
Eleventh Respondent

AND:
BARRICK SOMI TEMERI
Twelfth Respondent

Waigani: Hartshorn J.

2018: 29^th October,
2019: 14^th January

Application for leave to file a slip rule application

Cases Cited:

Pacific Equities and Investment Ltd v. Teup Goledu (2009) SC962
Andrew Trawen and Anor v. Stephen Pirika Kama and Ors (2010) SC1063 Nandali v. Curtain Bros Ltd (2012) SC1483
Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412
Papua New Guinea Law Society v. Cooper (2016) SC1553

Counsel:

Mr. I.R. Molloy and Mr. M. Tumul, for the Appellant
Mr. P. Waraniki, for the First and Eighth Respondents
Mr. W. Steven, for the Second, Third, Fourth and Sixth Respondents
Ms. C. Manua, for the Fifth Respondent
Mr. M. Nale, for the Tenth Respondent

14^th January, 2019

1. HARTSHORN J: This is a decision on a contested application for leave to bring a slip rule application. It is made by the tenth respondent, supported by the first and eighth respondents, and only as to the costs order made, by the fifth respondent.

Background

2. In the National Court the appellant, Nasfund, had commenced judicial review proceedings concerning land at Nine Mile, Port Moresby, described as portion 2123 (Land). Nasfund claims to be the registered proprietor of the Land. The eighth respondent, Sanamo, claims the same interest. The predecessor of Nasfund (Nasfund) was the registered leasehold proprietor of the State lease over the Land. Its lease expired and it applied for a renewal. The Land Board recommended that the lease be granted to Nasfund, and its decision was gazetted. Nasfund followed up the grant. Despite its earlier recommendation, the Land Board informed Nasfund that its application for the Land was refused and that another application had been successful.

3. The Minister then rejected an appeal under the Land Act 1996 by Nasfund. Nasfund commenced judicial review proceedings and leave to apply for judicial review was granted on 26^th May 2016. In a decision on various interlocutory applications delivered on 12^th September 2017, the primary judge stated amongst other things, that there was no doubt in his mind that there were serious issues raised in the proceedings and in the interests of justice granted interim injunctive orders. The matter returned to court on 18^th September 2017 and directions were issued. A pre-trial conference was set for 30^th October 2017. On 30^th October 2017 in the absence of Nasfund’s counsel, the matter was called on and the primary judge dismissed the proceedings for want of prosecution. On 6^th December 2017, the primary judge dismissed Nasfund’s application to set aside that dismissal (6/12 decision). By notice of motion filed 15^th January 2018 Nasfund appealed the 6/12 decision. The Supreme Court allowed the appeal. It ordered:

a) that in lieu of the orders made on 6^th December 2017, the orders of the National Court made on 30^th October 2017 should be set aside.

b) the respondents which made appearance in the hearing of the appeal shall pay the appellant’s costs of and incidental to the appeal such costs to be taxed if not agreed.

Application for leave to bring a slip rule application

4. The tenth respondent applies for leave pursuant to Order 11 Rule 32 and 32(3) Supreme Court Rules, and s. 155(4) Constitution, on the grounds that in essence the court slipped in:

a) failing to consider the objections to competency on the basis that the correct jurisdiction had not been cited;

b) placing too much emphasis on the question, “serious questions to be tried”;

c) mistakenly awarding the costs of the appeal against the respondents which made appearance on the hearing of the appeal.

5. The appellant submits that there is no merit in the proposed slip rule application and that leave should be refused as amongst others:

a) the Court’s decision not to consider the objections to competency as the correct jurisdictional basis had not been cited was deliberate and correct and conformed with numerous previous Supreme Court decisions;

b) to place too much emphasis on, “serious question to be tried” cannot be a misapprehension of the facts or the law and does not constitute a slip. No mistake of fact or law has been shown;

c) the appeal was successful and so the costs order made was the usual order to be made. No mistake of fact or law is identified.

Law

6. The principles governing slip rule applications have been considered by this court on numerous occasions. In Andrew Trawen and Anor v. Stephen Pirika Kama and Ors (2010) SC1063, this Court consisting of five judges, after a review of the authorities, agreed that the following principles are those that govern all slip rule applications to this court for it to reopen one of its decisions:

(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 below.

(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.

7. As to an application for leave to make a slip rule application, in Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412, the Court stated at [11] 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.

Consideration

Whether filed and served within time

8. It is not disputed that the application for leave was filed and served within time.

Whether there is a strong chance of success

9. The first four grounds of the tenth respondent are concerned with the Court making a slip in failing to consider the objections to competency as the correct jurisdictional basis had not been cited. The Supreme Court cases of Pacific Equities and Investment Ltd v. Teup Goledu (2009) SC962; Nandali v. Curtain Bros Ltd (2012) SC1483 and Papua New Guinea Law Society v. Cooper (2016) SC1553 are decisions of the full Supreme Court that were concerned with and affirmed the requirement to cite the correct jurisdiction, including in objections to competency. Given this, there is not a strong chance that upon hearing a slip rule application on these grounds that this Court would be satisfied that it had made a clear and manifest, not an arguable, error of law or fact on a critical issue.

10. The fifth ground is concerned with this Court making a slip by placing too much emphasis on serious questions to be tried and failing to address the fact that there were no meritorious grounds advanced for the failure of counsel to attend court on the date of the initial dismissal of the National Court proceeding.

11. As to the second part of this ground, in paragraph 16 of its judgment this Court indicates that it did consider the explanation for counsel’s non-attendance and stated that the explanation was not reasonable. As to the first part of this ground, that this Court placed too much emphasis on serious questions to be tried, this does not indicate or show that this Court misapprehended facts or law. There is not a strong chance that upon the hearing of a slip rule application on this ground that this Court would be satisfied that it had made a clear and manifest, not an arguable, error of law or fact on a critical issue.

12. As to the sixth ground, concerning the costs order, the usual rule is for costs to follow the event. The Court in exercising its discretion, so ordered. There is no merit in this ground.

13. Given the above, the application for leave to file a slip rule application is refused.

Orders

14. The orders of the Court are:

a) The leave application to file a slip rule application filed 26^th September 2018 of the tenth respondent is refused;

b) The costs of the appellant of and incidental to the said leave application shall be paid by the first, eighth and tenth respondents, and in addition, as to the costs issue, by the fifth respondent.
_____________________________________________________________
Allens: Lawyers for the Appellant
Waraniki Lawyers: Lawyers for the First and Eighth Respondents Kawat Lawyers: Lawyers for the Second, Third, Fourth and
Sixth Respondents
NCDC Legal Division: Lawyers for the Fifth Respondent
Office of the Solicitor General: Lawyers for the Seventh Respondent
Jema Lawyers: Lawyers for the Tenth Respondent