Gooneratne v Augerea [2021] PGSC 29; SC2104 (11 May 2021)

SC2104

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV. NO. 9 OF 2019

A REVIEW PURSUANT TO SECTION 155(2)(b) and (4) OF THE CONSTITUTION

BETWEEN
ANTHONY SHIRLEY GOONERATNE
Applicant

AND
IAN AUGEREA, REGISTRAR OF THE SUPREME COURT
Respondent

Waigani: Makail J
2020: 11^th March
2021: 11^th May

SUPREME COURT – Practice & Procedure – Application for leave to make Slip-Rule application – Leave sought to review decision of single judge’s refusal to grant leave to review decision of earlier Supreme Court – Summary dismissal of application for leave to review – Grounds of – Failure of employer to pay termination pay – Lack of legal assistance – Illness – Redrafting and refiling of application for review – Lack of assistance from Ombudsman Commission – Death of children and desertion by wife – Grounds misconceived – Rehashing of arguments – No apparent misapplication of fact or law by presiding judge – Leave refused – Supreme Court Rules – Order 11, rule 32

IMMIGRATION – Litigation by foreign national – Legal status of litigant – No visa – Visa expired – Illegally in country – Removal order by Minister – Victim of human trafficking – Migration Act, Ch 16 – Section 12

Cases cited:

Nil

Counsel:

Applicant in person
Mr. P. Ifina, for Respondent
Ms. L. Paua, (Amicus curiae)

RULING

11^th May, 2021

1. MAKAIL J: The applicant is a citizen of the country of Sri Lanka. According to his affidavit sworn and filed 16^th December 2019 which is materially uncontested, he came to Papua New Guinea some 29 years ago on 7^th June 1992 to work for a shipping company as a ship engineer. He was employed under a work permit in favour of the shipping company, held a valid visa and was based in Rabaul until his termination. When he was terminated, the company did not repatriate him to his home country. He was left stranded in the country all these years.
2. On 26^th June 1994 he commenced legal proceedings against the shipping company but the action was dismissed by the National Court sitting at Kokopo. On 4^th July 1999 he filed an application for leave to review under Section 155(2)(b) of the Constitution to the Supreme Court.

Summary Determination

3. Apparently, he filed another one on 9^th March 2009 in SC Rev No 12 of 2009. On 20^th April 2010 he received a letter from the Registrar of the Courts dated 24^th March 2010 informing him that the application for leave to review had been referred for summary determination. On 29^th April 2010, he appeared before the Supreme Court comprising of Mogish, Ellis and Sawong JJ and made submissions against the summary determination. After hearing him and counsel for the shipping company, the Supreme Court summarily determined the proceeding.

4. After eight years and ten months, the applicant filed this proceeding SC Rev No. 9 of 2019 on 26^th February 2019 seeking leave to review the decision of the Kokopo Supreme Court of 29^th April 2010. On 17^th April 2019 Dingake J sitting as a single Judge of the Supreme Court dismissed the application for leave.

5. While there is no evidence of reasons for judgment in terms of a written judgment or Court transcript to show why the single Judge dismissed the application for leave, it is not difficult to see why. The applicant’s application for leave to review in SC Rev No 12 of 2009 was previously summarily determined (dismissed) by the Supreme Court on 29^th April 2010.

6. As far as the Court is concerned the applicant had exercised his right to review and has exhausted it. Consequently, the matter is closed. It would be an abuse of process for a, differently constituted Supreme Court, to review an earlier decision of another Supreme Court.

7. Similarly, it would be contrary to the doctrine of res judicata for a Supreme Court to review its own decision. For it is in the public interest that there must be finality to litigation. Even if the applicant may be seeking a review of the Registrar’s decision to refer the proceeding for summary determination, the Registrar’s decision is not susceptible to review and the proceeding in its entirety is an abuse of process.

8. Notwithstanding these serious flaws inherent in the application, the applicant has filed an application for leave to make a slip rule application on 7^th May 2019. He seeks leave to re-open the application for leave in this proceeding.

Legal status of applicant

9. But first the applicant did not have a lawyer acting for him in the matter. When the Court enquired as to why he was not able to be given legal assistance, it was revealed that he had out-lived his visa and it was not known if he was to be deported from the country. However, it was to be confirmed. A summons was issued to the Chief Migration Officer to appear and assist the Court with information as to the legal status of the applicant. Ms Linda Paua of counsel for the Chief Migration Officer appeared as amicus curiae.

10. The initial information provided by the Chief Migration Officer was that the Immigration and Citizenship Authority did not have any record of the applicant. It undertook to further investigate his legal status. As the Court file will reveal after many adjournments over the course of 2019, it was eventually confirmed that the applicant had out-lived his visa and may be subject to a removal order by the Minister for Foreign Affairs and Immigration under Section 12 of the Migration Act, Ch 16. On the other hand, he may be a victim of human trafficking after being left stranded by his former employer when his employment came to an end.

11. According to the affidavit of John Taunakekei the officer in charge from the Immigration and Citizenship Authority of 10^th March 2020, the applicant has been assisted with medical treatment and counselling services by the Salvation Army. The Authority is overseeing the relief assistance arrangement under the guidance of Ms Paua.

12. However, it is not clear whether the Authority has reached a decision with some degree of certainty to deport the applicant to his home country at this point in time given his current situation. A clear decision is pivotal to the entire proceeding because, as a foreign national who has been living in the country on an expired visa and work permit, he may be illegally living in the country and has no right to litigate this matter. It is for this reason that it is possible that the application for leave could be dismissed on this ground alone. However, this ground was not relied upon by the Registrar.

13. This case also highlights the challenges faced by the responsible State department to track a foreign national who has over-stayed his visa and will need to review its processes to improve its tracking system to be more effective.

Grounds in support of leave

14. That said, as to the present application the applicant relied on a host of grounds, many of which are irrelevant, repetitious or vague and need no mention. However, I consider these to be the grounds:

(a) Failure by employer to pay termination pay

Under this ground, the employer offered to pay him a sum of K40.78 as his termination pay. He rejected it and went into hiding in fear of being deported and because he wanted to sue the employer for breach of contract.

(b) Lack of legal assistance

Under this ground, the applicant had sought legal assistance from the Public Solicitor but was not given legal aid. He has also sought advice and was haphazardly assisted by the staff of Kokopo Supreme Court Registry to prepare and file the application for leave to review.

(c) Illness

Under this ground, the applicant fell ill and was hospitalised at Nonga Base Hospital for a week for high blood pressure and diabetes.

(d) Redrafting and refiling of application for review

Under this ground, the applicant, after filing the initial document for the application for leave to review in 1999, redrafted and refiled an application in its proper form on 9^th March 2009 in SC Rev No 12 of 2009. He then prepared affidavits and draft index to the Review Book and forwarded them to the Supreme Court Registry for filing but not filed.

(e) Lack of assistance from Ombudsman Commission

Under this ground, the applicant sought assistance from the Ombudsman Commission and it was declined.

(f) Assistance from then Member for Gazzelle Hon. Malakai Tabar, MP

Under this ground, the applicant sought and was assisted by the then member for the National Parliament Hon. Malakai Tabar to file some Court documents.

(g) Request for listing of application for hearing

Under this ground, the applicant’s request to the Registrar to list his application for hearing was not attended to.

(h) Death of his Children and desertion by his wife

Under this ground, two of the applicant’s children back in Sri Lanka died and his wife deserted him.

Leave to make slip rule application

15. Order 11, rule 32 of the Supreme Court Rules states:

“Division 16. — Applications subsequent to disposal of proceedings

32. (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.”

Principles of Leave to make Slip Rule Application

16. An application of this nature involves an exercise of discretion by the Court based on proper principles, they being that the applicant must demonstrate that the slip or misapprehension of fact or law must not be of the applicant’s making, or that it is not to allow rehashing of arguments already raised and that it is not to allow new arguments that could have been put to the Court earlier. The onus is on the applicant to establish that the application has a strong chance of success.

Application of principles to case

17. Counsel for the Registrar submits that pursuant to Order 11, rule 32(3), the application for leave should be heard by Dingake J because he was the presiding judge who heard and dismissed the application for leave to review. However, he concedes that the application for leave was filed within 21 days as required by Order 11, rule 32(1). Consequently, the applicant has satisfied the time-limitation requirement.

18. In answer to the question of the presiding judge, by the time the application for leave was heard and reserved for decision, the presiding judge has since been unavailable due to Covid-19 pandemic having returned to his home country and his return is not immediately certain. Counsel for the Registrar has also not proposed an alternative mode by which the presiding judge could be asked to facilitate the hearing. In such circumstance, it is not feasible and practicable to strictly observe the requirement under Order 11, rule 32(3) and delay the hearing of the application until the presiding judge is available.

19. The events constituting the grounds and explanation by the applicant for the delay in prosecuting the application for leave to review in SC Rev No 12 of 2009 have been thoroughly canvassed by the Supreme Court on 29^th April 2010. Ellis J gave the leading judgment supported by Sawong J with whom Mogish J agreed that the applicant failed to prosecute the application for leave to review within a reasonable time and summarily determined (dismissed) it.

20. As this is not a slip rule leave application of that decision, it would be wrong to review that decision save to point out some significant aspects of the judgment which the applicant seems to be dissatisfied with. From the Court transcripts, Ellis J said:

“For my part, I am not satisfied that there has been an adequate explanation for the delay nor am I satisfied that there are circumstances that warrant leave.

Even in the event that leave was warranted, having read the documents, I am not satisfied that there is any merit in the substance of the application for review. It is clear from the number of letters which Mr Gooneratne has sent and the number of different people he has sent them to that he continues to wish to agitate a matter which has been finalised by both the National Court and the Supreme Court....................

For my part, this litigation should be treated as being over today. Mr Gooneratne should stop using all his time and efforts in relation to this litigation. He has had his opportunity to run his case in the National Court, he has had his opportunity to run his case in the Supreme Court and 16 years after he commenced in the National Court, 11 years after he commenced in the Supreme Court, he is still hanging onto the belief that somehow some injustice has occurred. I am not satisfied that any injustice has occurred.

Having read the papers, I am satisfied that he was given a fair hearing, that the matter was correctly decided on the facts and on the law and the short message in addition to the orders that I would make is that Mr Gooneratne needs to get this litigation out of his system, get on with his life and stop taking up his time and using time and money to agitate this dispute which has been fully and fairly considered and finalized”.

21. The reasons given by Ellis J are explicitly clear. There can be no doubt or uncertainty as to why his Honour formed a view that the application for leave to review should be summarily determined.

22. Sawong J observed:

“Mr Gooneratne had filed originally, if one was to accept his letter of 1999 as the application for leave for review of that decision then it would have taken – he has not done anything further on it. But taking the matter further and looking at – the matter that has been presently filed which was filed last year in (sic) 9 March 2009, he has in effect two proceedings on foot. The one filed in 1999 and the other one filed last year. In my view, that would amount to – tantamount to an abuse of the court’s process. The court is entitled to protect itself. The Supreme Court is entitled to protect itself from abuse. Even if the first letter that I have referred to is not accepted as an application for review, the current review as it is, is in my view also an abuse of the court’s process. As I have said the Supreme Court is entitled to protect its integrity”.

23. Sawong J was clarifying an apparent anomaly in relation to the form of the application for review, one was a letter which the applicant relied on way back in 1999 to seek review of the decision of the National Court and the other, the application for leave to review filed in 2009. The clarification was necessary to avoid duplication of the same proceeding. But overall, his Honour also formed a view that:

“In my view the material that Mr Gooneratne has raised in his affidavits – several affidavits which I have read during the course of this week do not reveal any exceptional circumstances. I would therefore, for these brief reasons dismiss the application. That is SCR 9 OF 2009. And for avoidance of doubt, the letter that was originally sent as an application in 1999, I will also dismiss that. There must be finality to any litigation otherwise as I have indicated during argument, the court would be open to abuse of its process if it allowed unmeritorious, unhappy litigants to come back and forth to the Supreme Court asking it to review its own decisions”.

24. The point to stress here is that the Supreme Court has considered the applicant’s submission explaining the delay in prosecuting the application for leave to review in SC Rev No 12 of 2009. Their Honours were not satisfied with the explanation of the applicant and summarily dismissed the matter. The applicant is bound to obey that decision regardless of his preferred view.

25. But after almost 9 years later, the applicant filed this proceeding SC Rev No 9 of 2019 to seek leave to review the summary determination (dismissal) decision of 29^th April 2010. And as was pointed out at [6] and [7] above, it cannot be done. The application for leave in SC Rev No 12 of 2009 has been concluded by summary determination. It is over.

26. The presiding judge could not overlook this fact and was left with no option but to dismiss the application, otherwise, there will be no end to this litigation. Additionally, and significantly, the grounds the applicant has relied on are the same grounds he relied on at the summary determination hearing and would amount to a rehashing of arguments. Similarly, there is no clear demonstration of a misapplication of the facts or law by the presiding judge which would amount to a slip.

Conclusion

27. The applicant has failed to demonstrate that a prima facie case of the presiding judge having slipped and leave will be refused. The file should be closed and archived. As there has not been much involvement and contribution by the Registrar through-out the proceeding except at the date of hearing, costs of the application shall be borne by each party.

Order

28. The orders are:

1. The application for leave to make a slip rule application filed 7^th May 2019 is refused.
   

2. The costs of the application shall be borne by each party.

3. The file should be closed and archived forthwith.

________________________________________________________________
Applicant: Self-Represented
NJSS In-house Counsel: Lawyers for Respondent

In-house Counsel: Lawyers for Department of Foreign Affairs and Immigration