Asuma (trading as Andy Asuma Trading) v Tiong Juk Chuong [2020] PGSC 149; SC2064 (4 December 2020)

SC2064

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 91 OF 2018

BETWEEN:

ANDY ASUMA trading as ANDY ASUMA TRADING
First Appellant

AND:
JOHN MOLU, NICK ASUMA, BENJAMIN MULU, REX LANO, LUKAS KUMUI and MARK TOMBIAGO
Second Appellants

AND:
TIONG JUK CHUONG,
Operations Manager, Wawoi Guavi Timber Company Limited
First Respondent

AND:
WONG KEH YEE,
Manager Straits Marine, Wawoi Guavi Timber Company Limited
Second Respondent

AND:
WAWOI GUAVI TIMBER COMPANY LIMITED
Third Respondent

AND:
SENIOR SERGEANT JERRY BIAMAGA
Fourth Respondent

AND:
FIRST CONSTABLE FRANK JOHE
Fifth Respondent

AND:
SECURITY GUARDS GERO BILLY, IDIE UGU, ADIE WAME,
IVAN IBALE, GIDION GAIWA and ILE BAIWABA
Sixth Respondents
Waigani: Hartshorn J,
2020: 2^nd & 4^th December

SUPREME COURT – practice and procedure - Application for leave to bring a slip rule application

Cases Cited:
Andrew Trawen and Anor v. Stephen Pirika Kama and Ors (2010) SC1063
Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412
Poko Kandapaki v. Enga Provincial Government (2015) SC1463

Counsel:

Mr. R. Awalua, for the Appellants
Mr. A. Mana, for the First to Third Respondents
Ms. C. Kuson, for the Fourth and Fifth Respondents

Oral decision
delivered on
4^th December 2020

1. HARTSHORN J: This is a decision on a contested application for leave to bring a slip rule application. It is made by the appellants.

Background

2. The appellants commenced proceedings in the National Court and claimed damages for breaches of human rights under Sections 36, 37, 42, 44 and 53 Constitution. This was following a police-led operation focused upon the first appellant’s business premises, following allegations that it was the site of an illicit trade in alcohol and drugs. The operation resulted in the first appellant being arrested and removed and his premises destroyed. The appellants alleged also that the second appellants were unlawfully assaulted and detained at the behest and with the financial and logistical support of the third respondent company and its management, especially the first and second respondents. The appellants further alleged that the first, second and third respondents were vicariously liable for the human rights breaches directly committed against them by the members of the police force which were led by the fourth respondent.

3. The National Court found against the appellants and they appealed to the Supreme Court. The Supreme Court dismissed their appeal.

4. The appellants now contend that the Supreme Court slipped in numerous instances in its judgment.

Law

5. 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.

6. 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 the application was filed and served within time

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

Whether there is a strong chance of success

8. In the application for leave to file a slip rule application, the affidavit in support and the submissions of the appellants in support of the application, there is no mention or reference to this Court proceeding on a misapprehension of fact or law and if there was such misapprehension, that it was not of the appellant’s making.

9. As the appellant’s grounds for applying for a slip rule application do not include that the Court proceeded on a misapprehension of fact or law and that any such misapprehension was not of the appellant’s making, I am not satisfied that their slip rule application would have a strong chance of success. Moreover, it is apparent that the grounds contained in the application and the submissions are in essence a rehash of arguments already raised in the appeal.

10. I also concur with a statement made by Cannings J. in Poko Kandapaki v. Enga Provincial Government (2015) SC1463 at [13] in which His Honour states:

“..... 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?”

11. Here, there is no transcript of the hearing of the appeal the subject of this application. The appellants are not able to prove even an arguable case that the Court slipped.

12. The appellants have not satisfied one of the two preconditions necessary to be satisfied for leave to be granted. It has not satisfied the Court that they have a strong chance of success with their slip rule application. Consequently, the application for leave to file a slip rule application should be dismissed.

Orders

13. It is ordered that:

a) The application for leave to file a slip rule application filed 24^th December 2019 is dismissed;

b) The appellants shall pay the costs of the first, second, third, fourth and fifth respondents of and incidental to the said leave application.
__________________________________________________________________
Awalua & Associates Lawyers: Lawyers for the Appellants
Corrs Chambers Westgarth: Lawyers for the First to Third Respondents
Office of the Solicitor General: Lawyers for the Fourth and Fifth Respondents