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Serowa v Guinn [2021] PGSC 96; SC2169 (3 December 2021)

SC2169


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCA NO. 1 OF 2007
SCA NO. 3 OF 2007
SCA NO. 70 OF 2009


BETWEEN:
THOMAS SEROWA
Appellant/Applicant


V


DAVID GUINN
Respondent


Waigani: Murray J & Shepherd J
2021: 25th November, 3rd December


SUPREME COURT - PRACTICE AND PROCEDURE – multiple slip rule applications – Order 11 Rule 32 Supreme Court Rules – appellant filed affidavits seeking discontinuance of appeals prior to summary determination hearing – appellant misinformed of time for summary determination hearing – appeals summarily dismissed in his absence - appellant changed position after ex parte summary dismissal of his appeals - appellant filed slip rule applications seeking reinstatement of appeals – slip rule principles to apply when determining whether to exercise discretion whether to reinstate – no misapprehension of fact or law – need for finality of litigation – slip rule applications refused.


The Appellant/Applicant applied under the slip rule principle for reinstatement of three of his appeals which had been summarily dismissed.


Cases Cited:
Papua New Guinea Cases


Finance Corporation Ltd v Kabiu Guards & Security Services Ltd (2013) N5326
Kaseng v Debege [2004] 2 PNGLR 129
Ling-Stuckey v Chan (2012) N4840
Lovika v Marlpo (2020) SC1916
Mune v Poto (1996) SC508
Marabe v Tomiape (2007) SC856
National Capital District Commission v Dademo (2013) SC1260
National Housing Estate Ltd v Decision 2000 Ltd (2020) SC1931
Re Nomination of Governor-General, Application by Sir Pato Kakaraya (No. 2) (2004) SC752
Rose v The State (2007) N3241
Tai v ANZ Banking Group (PNG) Ltd (2018) SC1681
Trawen v Kama (2010) SC1063
Waim No. 85 Ltd v The State (2015) SC1470
Wallbank v The State [1994] PNGLR 78


Overseas Cases


Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1993) 67 ALJR 270


Counsel


Thomas Serowa, Appellant/Applicant in person
Soa Gor, for the Respondent


RULING ON SLIP RULE APPLICATIONS


  1. BY THE COURT: This is a ruling on three slip rule applications.
  2. On 21 July 2020 the Appellant/Applicant (Mr Serowa) was granted leave pursuant to Order 11 Rule 32(3) of the Supreme Court Rules 2012 (SCR) to proceed with three slip rule applications, which seek to have this Court set aside ex parte orders made on 3 November 2017 which summarily dismissed Mr Serowa’s three inter-related appeals in SCA No. 1 of 2007, SCA No. 3 of 2007 and SCA No. 70 of 2009 for want of prosecution. Mr Serowa seeks the reinstatement of those three appeals so that they can be fully argued by him.
  3. In support of his slip rule applications, Mr Serowa primarily relies on two sets of affidavits sworn by him in each of his three appeals; his first set of affidavits sworn on 31 October 2017 and filed on 1 November 2017 prior to the summary dismissal of his appeals on 3 November 2017, and a further set of affidavits sworn by him on 6 November 2017 filed with his slip rule applications on 7 November 2017.
  4. The slip rule applications are contested by the Respondent to all three appeals (Mr Guinn) who submits that Mr Serowa’s applications are misconceived and should be dismissed with costs.

Background


  1. Mr Guinn as plaintiff filed a defamation suit against Mr Serowa as defendant in National Court proceeding WS No. 454 of 2003. Mr Guinn claimed damages arising from a letter written by Mr Serowa to Mr Guinn which had been distributed to other persons. Mr Guinn alleged that Mr Serowa’s letter had content that seriously impugned his professional reputation as an accountant practising in Mount Hagen.
  2. During the course of the defamation case, Mr Serowa lodged with the Supreme Court three separate applications in SCA No. 1 of 2007, SCA No. 3 of 2007 and SCA No. 70 of 2009 seeking leave in each instance to appeal against the undermentioned interlocutory orders made in WS No. 454 of 2003:
  3. Mr Guinn’s defamation proceeding in WS No. 454 of 2003 was later summarily determined by Justice Sakora on 24 August 2010 on Mr Serowa’s motion for dismissal filed on 27 July 2010. The motion was heard ex parte by his Honour on 24 August 2010 as there was no appearance on that occasion by or on behalf of Mr Guinn.
  4. On 5 October 2010 Mr Guinn filed a motion in WS No. 454 of 2003 seeking orders, among others, that the ex parte dismissal order of 24 August 2010 made by Justice Sakora be set aside and that Mr Guinn’s defamation claim against Mr Serowa be reinstated. Mr Serowa countered by filing a cross-motion on 27 October 2010 seeking orders that Mr Guinn’s motion be struck out pursuant to Order 12 Rule 40 of the National Court Rules as an abuse of process. The two motions were heard by Justice David in Mount Hagen on 2 May 2011 with decision reserved.
  5. Mr Guinn’s defamation action then lay in abeyance for more than 6 years until 31 October 2017, which is when Justice David delivered his ruling on the two motions he had heard in WS No. 454 of 2003 on 2 May 2011.
  6. Mr Guinn’s motion to set aside the dismissal order made by Justice Sakora in WS No. 454 of 2003 was refused by Justice David on 31 October 2017. This meant that the ex parte order for dismissal of Mr Guinn’s defamation suit with costs made by Justice Sakora on 24 August 2010 remained in full force.
  7. Prior to delivery of Justice David’s ruling on the two National Court motions in WS No. 454 of 2003 on 31 October 2017, Mr Serowa’s appeals in SCA No. 1 of 2007, SCA No. 3 of 2007 and SCA No. 70 of 2009 had been listed several times for summary determination for want of prosecution but were repeatedly stayed by orders of the Supreme Court, including a stay order made by former Chief Justice Injia on 8 October 2010 and a further stay order made by Justices Hartshorn, Geita and Frank on 16 December 2016.
  8. The stay order made on 16 December 2016 expressly stated in respect of each of Mr Serowa’s three appeals as follows:

This matter is removed from the Summary Determination List and adjourned to the Supreme Court Registry, pending the delivery of the decision by Justice David in WS 454 of 2003 in Mt Hagen, David Guinn -ats- Thomas Serowa.


  1. During the course of early to mid-October 2017 the Registrar of the Supreme Court caused a list to be published in the daily press which gave notice that numerous Supreme Court appeals were set down for hearing in early November 2017 for summary determination. The published list included Mr Serowa’s three appeals in SCA No. 1 of 2007, SCA No. 3 of 2007 and SCA No. 70 of 2009.
  2. The appeals in SCA No. 1 of 2007, SCA No. 3 of 2007 and SCA No. 70 of 2009 were listed by the Supreme Court Registry to come on for hearing before Justices Murray, Foulds and Shepherd along with numerous other appeals for summary determination commencing at 9.30 am on Friday 3 November 2017. The transcript of the hearing of the Registrar’s referral of Mr Serowa’s three appeals for summary determination shows that the hearing commenced before us at 10.39 am that morning. Mr Guinn was represented at the hearing by Mr Rakatani Raka of Posman Kua Aisi Lawyers. There was no appearance by or on behalf of Mr Serowa at that summary determination hearing.
  3. Mr Raka informed us at the summary determination hearing on 3 November 2017 that earlier that same week, on Tuesday 31 October 2017, Justice David had delivered the National Court’s ruling in WS No. 454 of 2003 which had been pending since the hearing on 2 May 2011 of Mr Guinn’s motion for reinstatement filed on 5 October 2010 and Mr Serowa’s cross-motion for dismissal of that motion filed on 27 October 2010. Mr Raka informed the Court to the effect that Justice David had, by delivery of his ruling in WS No. 454 of 2003 on 31 October 2017, upheld Mr Serowa’s cross-motion and had dismissed Mr Guinn’s motion for reinstatement of the defamation action, thereby confirming the earlier dismissal of that case for want of prosecution which had been made by Justice Sakora on 24 August 2010.
  4. After hearing Mr Raka’s explanation and considering the material before the Court, Justice Murray delivered our ex-tempore decision on the Registrar’s referral of Mr Serowa’s three appeals for summary determination in these terms:

MURRAY J: ... We are satisfied that the appellant, despite what happened before Justice David, the appellant is fully aware that this appeal is listed today to be summarily determined as you had said he was with you and the position you took was that he should appear today and discontinue the proceedings. But he is not here and it is listed for summary determination. We, the three of us, have unanimously agreed that we will dismiss the appeal for want of prosecution and order that the appellant pay costs in all of the three appeals to the respondent to be taxed if not agreed.


  1. The formal order for each of Mr Serowa’s three appeals in SCA No. 1 of 2007, SCA No. 3 of 2007 and SCA No. 70 of 2009 which were summarily determined on 3 November 2017 was worded:

The appeal is dismissed for want of prosecution with cost[s] to the Respondent to be taxed if not agreed.


  1. On 7 November 2017 Mr Serowa filed his three separate applications in SCA No. 1 of 2007, SCA No. 3 of 2007 and SCA No. 70 of 2009 seeking leave pursuant to Order 11 Rule 32 and/or Rule 32(3) SCR to proceed with slip rule applications. The applications were promptly filed only four days after Mr Serowa’s three appeals had been summarily dismissed on 3 November 2017.
  2. On 8 December 2017, the day after Mr Serowa filed his slip rule applications, Mr Guinn filed his appeal SCA No. 175 of 2017 in the Supreme Court. Mr Guinn’s appeal, which has yet to be set down for substantive hearing, is against the ruling and orders made by Justice David in WS No. 454 of 2003 on 31 October 2017 which had reconfirmed Justice Sakora’s ex parte dismissal of Mr Guinn’s defamation claim against Mr Serowa.
  3. On 21 July 2020 Justice Shepherd sitting as a single judge of the Supreme Court granted leave to Mr Serowa pursuant to Order 11 Rule 32(3) SCR to proceed with his three slip rule applications. His Honour was satisfied that Mr Serowa had been misinformed by Registry staff that the hearing for the summary determination of Mr Serowa’s appeals was listed for the afternoon session of the Supreme Court which commenced at 1.30 pm instead of 9.30 am on 3 November 2017 and that therefore Mr Serowa was not at fault for his absence from Court that morning. His Honour’s ruling did however come with the caveat that the effect of Justice David’s ruling delivered in WS No. 454 of 2003 on 31 October 2017 could have largely rendered Mr Serowa’s appeals in SCA No. 1 of 2007, SCA No. 3 of 2007 and SCA No. 70 of 2009 against interlocutory orders made in WS No. 454 of 2004 somewhat futile, except as to costs.
  4. Despite having been made aware of Justice Shepherd’s misgivings announced in his Honour’s ruling delivered on 21 July 2020 as to the utility of pursuing the slip rule applications, Mr Serowa nevertheless decided to exercise his right to pursue his applications.
  5. After a series of directions hearings followed by adjournments on 20 December 2020 and again on 23 November 2021, Mr Serowa’s slip rule applications came back before Justice Murray and Justice Shepherd on 25 November 2021 for substantive hearing. Mr Serowa had been adamant that he wished to pursue all five of his grounds in his slip rule applications in his endeavours to have his three appeals in SCA No. 1 of 2007, SCA No. 3 of 2007 and SCA No. 70 of 2009 reopened so that he could argue his leave applications before the Supreme Court.
  6. Mr Serowa’s three slip rule applications were substantively heard by Justice Murray and Justice Shepherd on 25 November 2021, at which time we reserved our decision for delivery on 3 December 2021.
  7. The reason why there were only two judges to hear Mr Serowa’s slip rule applications on 25 November 2021 is because Justice Foulds passed away on 16 September 2018. Following his untimely death, Mr Serowa and counsel for Mr Guinn, Ms Hiob of Fiocco & Nutley Lawyers, each informed the Court when it was specially convened on 16 December 2020 that in accordance with the tenor of s.3(1) of the Supreme Court Act Ch. 37, Justice Murray and Justice Shepherd (this Court) should continue to deal with Mr Serowa’s slip rule applications notwithstanding the death of the late Justice Foulds. This agreement meant that a differently constituted Supreme Court did not have to be empanelled to determine Mr Serowa’s slip rule applications: see National Housing Estate Ltd v Decision 2000 Ltd (2020) SC1931.

Issue


  1. The issue in this case is whether this Court made a slip or mistake due to misapprehension of fact or law on 3 November 2017 when it dismissed Mr Serowa’s three appeals in SCA No. 1 of 2007, SCA No. 3 of 2007 and SCA No. 70 of 2009 for want of prosecution such that the order must be corrected.

Consideration


  1. Mr Serowa’s three slip rule applications are made pursuant to Order 11 Rule 32 (1), (2) and (3) SCR. Order 11 Rule 32 SCR states:
    1. (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.


  1. The onus is on Mr Serowa to convince this Court that his applications meet the requirements of the principles applicable to the slip rule in the Supreme Court.
  2. The purpose of a slip rule application in the Supreme Court is to request the Court to revisit its otherwise final judgment to correct a manifest error of fact or law which has occurred from an accidental slip or omission made by the Court. However, the circumstances in which a final judgment of the Supreme Court can be reopened by way of a slip rule application are extremely limited.
  3. The Supreme Court Act Ch. 37 does not specifically touch on the manner or extent of this Court’s power to entertain by way of a slip rule application fresh argument whether before or after a final judgment.
  4. The SCR do not provide any guidance as to what constitutes a slip rule application. However, it is settled law that the principles applicable to a slip rule application derive from English common law as adopted and developed by our judicature as part of the underlying law of Papua New Guinea. Both the National Court and the Supreme Court have an inherent jurisdiction to correct errors in their own orders: Mune v Poto (1996) SC508.
  5. In Wallbank v The State (1994) PNGLR 78 (Los, Brown, Sakora JJ) the Supreme Court adopted the slip rule principle enunciated in the Australian High Court decision in Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1993) 67 ALJR 270 where Mason CJ said at page 271, after dealing with matters calling for review and after having referred to earlier Australian decisions on point:

These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasised that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor it is to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and a misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a back door method by which unsuccessful litigants can seek to re-argue their cases.


  1. However, when adopting the above slip rule principle, the Supreme Court in Wallbank v The State held that this was subject to the proviso that the Court will only consider a slip rule application to correct its own error if the mistake can be seen as being little short of extraordinary and the mistake must affect an unsuccessful party. The Court further held that the public interest in the finality of civil litigation must preclude all but the clearest “slip” error as a ground to reopen a matter already determined by the Court.
  2. The limitations imposed by the Supreme Court in Wallbank v The State on the principles applicable to slip rule applications have been approved in numerous subsequent cases, including Re Nomination of Governor-General, Application by Sir Pato Kakaraya (No. 2) (2004) SC752, Marabe v Tomiape (2007) SC856, Trawen v Kama (2010) SC1063; Ling-Stuckey v Chan (2012) N4840; Waim No. 85 Ltd v The State (2015) SC1470.
  3. As to the jurisdiction of the National Court to amend or correct a formal order which by accident or error does not reflect the actual decision of a judge, Order 8 Rule 59(1) of the National Court Rules (NCR) has the following slip rule which is derived from the Court’s inherent jurisdiction and which expressly provides:

59(1) Where there is a clerical mistake in a minute of a judgment or order, or an error in a minute of a judgment or order arising from an accidental slip or omission, the Court, on application by a party or of its own motion, may, at any time, correct the mistake or error.


  1. In Kaseng v Debege [2004] 2 PNGLR 129 Kandakasi J (as he then was) reviewed the case authorities for slip rule applications in the National Court in the context of Order 8 Rule 59(1) NCR and observed at page 138:

Counsel for the applicants drew my attention to the case of Orogen Minerals Limited v Internal Revenue Commission (26/09/03) N2464, per Sakora J, as a case in point. His Honour held, and I agree, that the intention of this rule is to correct errors or omissions in a judgment or order with a view to setting the record straight. It follows, therefore, that it was not the intention of the rule to give someone a second or third chance by coming back to the Court repeatedly after exhausting all other avenues only because one is not happy with the result, and thereby use the rule to prevent or prolong the enforcement of orders.


  1. His Honour’s ruling on the purpose and effect of Order 8 Rule 39(1) NCR has been adopted and approved in numerous subsequent National Court cases: see for example Rose v The State (2007) N3241 (Gavara-Nanu J); Finance Corporation Ltd v Kabiu Guards & Security Services Ltd (2013) N5326 (Kariko J).
  2. In National Capital District Commission v Dademo (2013) SC1260 (Injia CJ, Sawong & Murray JJ) the Supreme Court observed at paras. 7 and 8:

7. The National Court’s jurisdiction to correct its own mistakes in a judgment under the slip rule principle is part of the Court’s inherent discretionary jurisdiction. It is an open ended and flexible procedure developed by case law that permits the judge or Court to correct errors in a judgment that would be either a “clerical [or] accidental omission in a judgment or order or would be a misapprehension of fact or law”: Laimo v Kama [(2010) SC1064]. Clearly the jurisdiction may be exercised by the Court of its own motion or invoked by a party on application, in an appropriate case, at any time after judgment is given.


8. The provisions of O 8 r 59 of the National Court Rules 1987 reinforce the slip rule principle insofar as “clerical mistakes” in a judgment is concerned. It permits a judge on application by a party or of the Court’s own motion to correct clerical mistakes in a judgment at any time after judgment has been given. A slip rule application under this provision is not premised on whether or not the orders have been entered.


  1. Reverting back to the principles applicable to the slip rule when invoked in the Supreme Court, it was held in Marabe v Tomiape (2007) SC856 (Hinchliffe, Batari, Cannings JJ) that the Supreme Court has power under the underlying law to hear slip rule applications and to set aside its own decisions irrespective of the jurisdiction under which the original decision was made. It was also held in Marabe v Tomiape that there are seven general principles which apply to slip rule applications:

(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.


  1. In Lovika v Marlpo (2020) SC1916 Kandakasi DCJ succinctly stated at para. 29:

The slip rule procedure is not available for raising new arguments or arguments that should have been put before the full Court before it came to its decision which becomes the subject of a slip rule application.

  1. In summary, apart from correcting accidental mistakes or omissions in a judgment or order, the slip rule can be invoked where a judgment or order of the Court, by some misapprehension of fact or law, does not reflect the true intention of the Court when it delivered its judgment. But it is equally clear that a slip rule application cannot be used as a substituted or alternative means to review a final judgment or decision of either the National Court or the Supreme Court with which a party may be aggrieved. For a slip rule application to be successful, the applicant must come squarely within the limitations to which the slip rule is subject.

Grounds of Mr Serowa’s Slip Rule Applications


  1. Mr Serowa has pleaded five grounds in support of his slip rule applications. We paraphrase those grounds as follows:

(1) The Court failed to take into account Mr Serowa’s affidavits sworn on 31 October 2017 and filed on 1 November 2017 in each of his three appeals, those affidavits having given the up-to-date status of the appeals which did not warrant dismissal for want of prosecution.


(2) The Court dismissed the three appeals as it was misled by counsel for Mr Guinn on misconceived facts, there having been no affidavit from Mr Guinn which showed cause warranting the dismissal of Mr Serowa’s appeals for want of prosecution.


(3) There were previous orders of the Supreme Court which stayed Mr Serowa’s appeal proceedings pending determination by the National Court of Mr Guinn’s motion filed in WS No. 454 of 2003 on 5 October 2010 seeking to have set aside the ex parte order for dismissal of Mr Guinn’s defamation case against Mr Serowa.


(4) The Court was not properly heard on the consequences for Mr Serowa’s appeal of the order made by the National Court in WS No. 454 of 2003 on 31 October 2017, which National Court order confirmed the earlier dismissal of Mr Guinn’s defamation action against Mr Serowa.


(5) Mr Serowa was denied natural justice in that he had no opportunity to address the Court on “the true factual grounds” because clerks at the Supreme Court Registry had inadvertently misinformed him that the summary determination hearing for his appeals was fixed for 1:30 pm instead of 9:30 am on 3 November 2017.


  1. At the commencement of the substantive hearing of Mr Serowa’s slip rule applications on 25 November 2021, we enquired of Mr Serowa if he wished to continue with all five of his grounds or if he would be abandoning any of them. Mr Serowa was adamant that he was relying for the purpose of his slip rule applications on all five of his grounds. We therefore address each of those five grounds.

Ground 1


  1. As to the first of Mr Serowa’s grounds, we observe at the outset that the Court files for Mr Serowa’s three appeals contain his first set of affidavits sworn on 31 October 2017 and filed on 1 November 2017. Each of those affidavits is in similar terms to the others as to content. The affidavit is court document no. 29 in SCA No. 1 of 2007, court document no. 52 in SCA No. 3 of 2007 and court document no. 32 in SCA No. 70 of 2009.
  2. The first affidavit relied on by Mr Serowa in his slip rule application filed in SCA No. 1 of 2007 on 8 November 2017 is reproduced in volume 2 of Mr Serowa’s application book (AB) at pages 614 to 625. Mr Serowa relevantly deposes in that affidavit as follows:

AFFIDAVIT DEPOSING FACTS TO BE RELIED UPON FOR SUMMARY DETERMINATION


On the 31st day of October 2017, I, Thomas Serowa of T Serowa & Co, of PO Box 1033, Mt Hagen, Western Highlands Province, MAKE OATH AND SAY:


  1. I am the appellant Applicant in the proceedings SCA 01 of 2007 ...
  2. The primary cause of action from which this appeal originated from WS 454 of 2003 in the National Court had its pleadings struck out, the interlocutory judgment orders made on the 20/12/2006 were set aside, and the entire proceedings were dismissed on the 24/08/2010.

Annexure “A” is the copy of the Orders dismissing the originating process proceedings WS 454 of 2003 on the 25/08/2010.


  1. Counsel for the Plaintiff filed an application on the 5th October 2010 to set aside the above final dismissal orders. On the 31st October 2017, in its ruling, the National Court refused to set aside the orders made on the 24/08/2010. In other words, it confirmed the orders made on the 24/08/2010.

Annexure “B” is the copy of the order made on the 31/10/2017.


  1. Earlier, the appeal proceedings were stayed by Injia CJ pending the outcome of the ruling on the motion filed in the lower court by the Plaintiff because of the potential consequences of resurrecting the proceedings in the lower court. However, now the primary cause of action [has] reached its end and now it’s all over.

Annexure “C” is the copy of the order made on the 08/10/2010 staying the appeal.


  1. With no originating process proceedings on foot in the National Court, the appeal can no longer be continued and therefore I seek the following orders from this court summarily:

(a) I seek leave of the Court to file Notice of Discontinuance of the Appeal within the next 30-Days from today.


(b) Costs on the same terms as ordered in the National Court in Order paragraph No. 5 made on the 24/08/2019 because the appeal was consequential from the primary cause of action and for the reasons set out in order paragraphs 1, 2 and 4 of orders of 24/08/2010.

Sworn [etc]” [underlining added]


  1. Affidavits sworn by Mr Serowa and filed by him in related appeals SCA No. 3 of 2007 and SCA No. 70 of 2009 on 1 November 2017 are in similar terms.
  2. We consider that it is disingenuous for Mr Serowa to now contend that the matters deposed to by him in his own affidavits sworn on 31 October 2017 and filed on 1 November 2017 did not warrant our dismissal of his appeals for want of prosecution. Mr Serowa unambiguously asserted in those affidavits that the principal orders he was seeking from this Court at the summary determination hearing, which he knew was to be held on 3 November 2017, was for leave to be granted by this Court for him to discontinue his three appeals given that the dismissal of Mr Guinn’s defamation suit in WS No. 454 of 2003 on 24 August 2010 had been reconfirmed by Justice David’s decision delivered on 31 October 2017.
  3. We are of the view that the request contained in Mr Serowa’s affidavits filed on 1 November 2017 justified our dismissal of his three appeals. Mr Serowa had himself expressly indicated in his affidavits that he wanted leave to discontinue his appeals because, as he said in his own words in his affidavits, Mr Guinn’s primary cause of action in defamation against him “had reached its end and was over”. Confronted with Mr Serowa’s absence before us at the summary determination hearing for his three appeals on the morning of 3 November 2017, it was clear, after hearing the submissions made by Mr Raka for Mr Guinn, that Mr Serowa was on notice that the summary determination hearing had been fixed for that day. We had at that juncture received no explanation from Mr Serowa for his absence that morning. Mr Serowa’s affidavits filed on 1 November 2017 speak for themselves. The fact that we did not grant Mr Serowa in his absence that morning leave to discontinue his appeals and make the costs order he wanted was outweighed by our decision to summarily determine all three of Mr Serowa’s appeals. We exercised our discretion to dismiss Mr Serowa’s appeals in his absence for want of prosecution rather than grant him leave to discontinue because of the need for finality in this protracted and costly litigation. We determined in the exercise of our discretion that the dismissal of the three appeals was the most appropriate order to make. We were aware of the earlier stay orders that had been made in Mr Serowa’s three appeals. Mr Serowa’s non-appearance before us on the morning of 3 November 2017 was of concern to us because he was on notice, but his position as expressed in his affidavits filed on 1 November 2017 was clear. Mr Serowa was seeking leave to discontinue his appeals now that Mr Guinn’s defamation suit against him in the National Court was over.
  4. The want of prosecution which gave rise to the dismissal orders made on 3 November 2017 was not based on any misapprehension by us as to the effect of the previous stay orders which Mr Serowa had previously obtained from the Supreme Court. The issue of want of prosecution arose from Mr Serowa’s non-appearance before us on 3 November 2017 after he was on notice as from the preceding Monday that his three appeals were adjourned to Friday 3 November 2017 for summary determination. We of course did not know at that time what the reason was for Mr Serowa’s non-appearance. The Court’s files did however have Mr Serowa’s affidavits filed on 1 November 2017 which stated in no uncertain terms his intention to seek leave to discontinue his three appeals.
  5. The fact that Mr Serowa later changed his mind and that he now seeks orders from this Court via his three slip rule applications to reopen his three appeals is irrelevant to what was before the Court at its summary dismissal hearing on 3 November 2017.
  6. Furthermore, Ground 1 of Mr Serowa’s slip rule applications does not expressly plead what misapprehension of fact or law was made by this Court when it summarily dismissed Mr Serowa’s three appeals. This is a fundamental error of pleading which we cannot overlook.
  7. For these reasons, Ground 1 of Mr Serowa’s slip rule applications is seriously flawed. We reject Ground 1 out of hand.

Ground 2


  1. Ground 2 of Mr Serowa’s slip rule applications pleads to the effect that Mr Raka, counsel for Mr Guinn, misled this Court at the summary dismissal hearing on 3 November 2017 and that there was no affidavit from Mr Guinn to show cause which would have warranted dismissal of Mr Serowa’s three appeals for want of prosecution.
  2. Mr Serowa’s affidavits filed on 7 November 2017 in support of his slip rule applications go largely to his explanation as to why he did not attend this Court on the morning of 3 November 2017 because of wrong information given to him by staff at the Supreme Court Registry. However, Mr Serowa deposes at para. 12 of these affidavits as follows:
    1. To me, [Mr Raka] has misled the Court of the stay orders and he did not file an affidavit deposing any fact whatsoever desiring dismissal for want of prosecution because the stay orders locked the proceedings from dismissal. He failed of his duty to fairly and truly inform the Court of the stay orders and the consequential orders of the National Court made on the 31/10/2017 having an effect on the proceedings, especially in the outcome of the Appeal proceeding.
  3. A further set of affidavits sworn by Mr Serowa on 9 October 2018 and filed on 10 October 2018 in support of his slip rule applications (but not referred to in his written extract or oral submissions made on 25 November 2021) again alleges that Mr Raka intentionally misled the Court by not bringing the Court’s attention to the stay orders which had been made in Mr Serowa’s three appeals. Mr Serowa deposes at paras. 5 and 6 of those affidavits as follows:
    1. On the 03/11/2017, Mr Raka Rakatani had this proceedings (SCA 01 of 2007) dismissed for want of prosecution in the Summary Determinations Court whilst on the contrary the Supreme Court on its records stayed the appeal proceedings pending the hearing and determination of the Application to set aside the final orders of 24/08/2010 in the lower court below.
    2. It was not an issue of want of prosecution but there were clear orders of the Supreme Court staying the originating process proceedings of the Supreme Court. It was a clear error on the part of the Supreme Court and Mr Raka Rakatani knowingly misled the Supreme Court to dismiss the proceedings for want of prosecution whilst all along he knew that they were many stay orders on foot issued by the Supreme Court.
  4. The transcript of the dismissal proceedings which were before the Court on 3 November 2017 is to be found in Volume 1 of Mr Serowa’s AB at pages 199 to 204 filed in SCA No. 1 of 2007 on 10 February 2020. The same transcript is contained in Mr Serowa’s application books filed on the same date in SCA No. 3 of 2007 and SCA No. 70 of 2009. The transcript was certified correct by the Director of the Court Reporting Service on 17 June 2019. Mr Serowa did not therefore have the benefit of the transcript of the dismissal proceedings when he swore his affidavits filed on 7 November 2017 and 10 October 2018 in support of his slip rule applications.
  5. The transcript shows that, contrary to what is alleged by Mr Serowa in his affidavits, Mr Raka clearly drew this Court’s attention at the summary dismissal hearing on 3 November 2017 to the fact that Justice David had only several days earlier on 31 October 2017 delivered his reserved decision in WS No. 454 of 2003 which reconfirmed the ex parte dismissal by Justice Sakora on 24 August 2010 of Mr Guinn’s defamation suit against Mr Serowa.
  6. Mr Raka did not mislead this Court in any material way on 3 November 2017. The transcript shows that Mr Raka said that he and Mr Serowa had both been present in the National Court on 31 October 2017 when Justice David handed down his reserved decision and that he and Mr Serowa were at that time both aware that Mr Serowa’s three appeals from orders made in WS No. 454 of 2003 were set down for summary dismissal hearing in the Supreme Court on 3 November 2017. The transcript also shows that Mr Raka informed this Court that Mr Serowa’s three appeals in SCA No. 1 of 2007, SCA No. 3 of 2007 and SCA No. 70 of 2009 had previously been stayed by order of the Supreme Court made on 8 October 2010. The transcript records that the following exchanges took place between the bench and Mr Raka on the morning of 3 November 2017:

MR RAKA: ... What this order did was stay all these matters pending the decision in the National Court.


MURRAY J: The order of 8 October 2010?


MR RAKA: 2010, yes.


MURRAY J: And that is an order by the Supreme Court?


MR RAKA: Yes. Staying these proceedings and the other two related proceedings, SCA 3 of 2007 and SCA 1 of 2007.


SHEPHERD J: So what is your position?


MR RAKA: What happened was, on Tuesday earlier this week the National Court then delivered its ruling in the National Court matter. And I had appeared with the plaintiff in person before the National Court at 1.30 pm wherein his Honour Justice David handed down his ruling.


SHEPHERD J: And what was the effect of that ruling? What was the order?


MR RAKA: The proceeding in the National Court was by the respondent who is the plaintiff in the National Court. The effect of that order basically confirmed an earlier order to dismiss the proceedings. So the proceedings in the National Court now stands dismissed.


SHEPHERD J: So what is your client’s position in relation to the appeals?


MR RAKA: Well, this is the appellant’s appeal. He appeared on Tuesday so I was hoping that he will appear this morning and inform the court as to what he would like to do with the appeal. I have sought my client’s instructions but has not come back to me as yet.


SHEPHERD J: So your client as respondent has incurred costs?


MR RAKA: Yes.


SHEPHERD J: Well, what is your client’s position in relation to costs ...


MR RAKA: My client just advised that in the event that because the proceedings in the National Court has now become in favour of the appellants, if the appellant sought to have the proceedings discontinued then my client will ask for reasonable costs.


FOULDS J: Have you been in contact with the appellant recently?


MR RAKA: Myself and the appellant had attended on Tuesday before his Honour Justice David wherein his Honour ...


FOULDS J: Here in Waigani?


MR RAKA: Here in Waigani, yes.


FOULDS J: Yes.


MR RAKA: And at 1.30 pm, his Honour handed down his ruling in the National Court matter.


MURRAY J: And you both were aware of this matter on the summary determination list?


MR RAKA: Yes, we both are ...


MURRAY J: He was aware of it.


MR RAKA: He was aware; we had attended [Supreme Court] on Monday. On Monday, all matters were deferred to today. But on Tuesday, he was aware that yes, these matters – so have agreed that we would then attend this morning and he would inform the court of his view and I would then advise the court in the event that he would discontinue the proceedings, my client will seek reasonable costs.


  1. The transcript establishes to our satisfaction that Mr Serowa’s allegations that Mr Raka misled us at the summary dismissal hearing on 3 November 2017 cannot be sustained. Mr Serowa’s allegations were based on surmise, not fact, as Mr Serowa did not have access to the transcript of those proceedings, certified on 17 June 2019, when he swore his affidavits filed on 7 November 2017 and 10 October 2018.
  2. What has become apparent subsequent to the summary dismissal of Mr Serowa’s three appeals by this Court on 3 November 2017 is that Mr Serowa very soon thereafter changed his position. Mr Serowa no longer wanted his three appeals to have been discontinued by him, despite his appeals having been dismissed by this Court. Instead, Mr Serowa soon realised that if Mr Guinn were to lodge an appeal to the Supreme Court against Justice David’s ruling and orders of 31 October 2017, which had reconfirmed the earlier dismissal on 24 August 2010 of Mr Guinn’s defamation claim against Mr Guinn, and if that appeal by Mr Guinn were to be successful and the case were to be remitted by the Supreme Court back to the National Court, then the inter partes order made by Justice Kandakasi in WS No. 454 of 2003 on 20 December 2006 which had struck out Mr Serowa’s defence and entered judgment against him with damages to be assessed would still stand. Justice Kandakasi’s orders made on 20 December 2006 were the very orders which had prompted Mr Serowa’s filing of his appeal in SCA No. 3 of 2007 – and that appeal had now been summarily dismissed by this Court on 3 November 2017, along with Mr Serowa’s two other appeals. Hence Mr Serowa’s concern that this Court should not have exercised its discretion to dismiss his three appeals on 3 November 2017 but that it should instead have refused the Registrar’s application for summary dismissal and allowed Mr Serowa’s three appeals to remain on foot to allow him the opportunity to argue his leave applications for his three appeals before another bench of the Supreme Court.
  3. This reversal in Mr Serowa’s position, we have now belatedly ascertained, was the true reason why Mr Serowa filed his three slip rule applications on 7 November 2017, only four days after this Court had dismissed his appeals due to his failure, apparent to us at that time, to attend in the morning of 3 November 2017 when he was on notice that his appeals were set down for summary determination on that date. We were of course not aware on the morning of 3 November 2017 that staff at the Supreme Court had erroneously informed Mr Serowa that his subject appeals were listed for summary determination in the afternoon, not the morning, of 3 November 2017.
  4. The combination of these factors explains why Mr Serowa now seeks in Ground 2 of his slip rule applications to assert that we were misled by Mr Raka when we arrived at our decision on the morning of 3 November 2017 to summarily dismiss Mr Serowa’s three appeals and why Mr Guinn supposedly should have filed affidavit material to show why dismissal was warranted. However, as we have found, Mr Raka did not mislead us at all. Mr Raka correctly directed our attention to the earliest of the stay orders which was in place in Mr Serowa’s three appeals. Mr Raka then informed us that Mr Serowa was on notice that his three appeals had been adjourned by the Supreme Court Registry on Monday 30 October 2017 to Friday 3 November 2017 and that there had been some discussion with Mr Serowa on 31 October 2017, after Justice David reconfirmed the dismissal of Mr Guinn’s defamation claim, that Mr Serowa might be seeking to discontinue his three appeals. This intention on the part of Mr Serowa to seek discontinuance of his appeals at the summary determination hearing on 3 November 2017 was clearly evidenced and confirmed in Mr Serowa’s own affidavits filed in all three appeals on 1 November 2017.
  5. We also observe that, as with Ground 1, Ground 2 of Mr Serowa’s slip rule applications fails to expressly plead what misapprehension of fact or law was made by this Court when it exercised its discretion on 3 November 2017 to summarily dismiss Mr Serowa’s three appeals.
  6. For these reasons we reject ground 2 of Mr Serowa’s slip rule applications.

Ground 3


  1. Mr Serowa’s Ground 3 of his slip rule applications is not a competent ground at all. Ground 3 is merely a statement of fact. Ground 3 states that certain stay orders in the three appeals were in place which prevented interlocutory motions in WS No. 454 of 2003 from being moved “until after the hearing and determination from the National Court of an application filed on the 5/10/2010 in WS 454 of 2003”. In other words, what was pleaded in Mr Serowa’s Ground 3 of his slip rule applications was that Mr Guinn’s defamation action in the National Court had been repeatedly stayed by the Supreme Court pending the decision to be delivered by Justice David, which decision was finally handed down on 31 October 2017. This is not a ground to demonstrate any misapprehension of fact or law on the part of this Court when it summarily dismissed Mr Serowa’s three appeals.
  2. Ground 3, being a mere statement of fact, pleads no misapprehension of fact or law made by this Court. We reject Ground 3.

Ground 4


  1. Ground 4 of Mr Serowa’s slip rule applications makes very little sense. Put at its best, Mr Serowa appears to be saying in his Ground 4 to the effect that Justice David’s ruling and orders of 31 October 2017 in reconfirming the dismissal of Mr Guinn’s defamation action had consequences which should have been properly canvassed before this Court by inter partes hearing on 3 November 2017. If this is what Mr Serowa intended as his Ground 4, then this is simply a submission.
  2. Ground 4 has failed to plead with clarity what misapprehension of fact or law was made by this Court when it summarily determined Mr Serowa’s three appeals.
  3. It is axiomatic that this Court could only come to a decision on 3 November 2017 on the material which was before it. Mr Serowa had by that time already filed his first set of affidavits on 1 November 2017 which clearly indicated that it was his position that the dismissal of Mr Guinn’s defamation action against him, reconfirmed by Justice David on 31 October 2017, is what had prompted his request in para. 5 of his first set of affidavits that leave be granted to him by this Court to allow him to file notices of discontinuance of his appeals within 30 days and that certain costs orders be made. This is consistent with what Mr Raka informed this Court was the upshot of his discussions with Mr Serowa at the National Court on 31 October 2017 after Justice David had delivered his ruling and orders that day.
  4. If Mr Serowa had wanted to put some other alternative to us in his set of affidavits filed on 1 November 2017, for instance the consequences he could potentially be exposed to if Mr Guinn were to file an appeal to the Supreme Court against the ruling and orders made by Justice David on 31 October 2017, he did not do so. The potentiality of those consequences only occurred to Mr Serowa after the orders for summary dismissal of his three appeals were made by us on 3 November 2017. We were under no misapprehension of fact or law when the dismissal orders were made. We reject Ground 4 of Mr Serowa’s slip rule applications.

Ground 5


  1. Ground 5 of Mr Serowa’s slip rule applications has more substance. Ground 5 pleads that Mr Serowa was denied natural justice in that he did not appear before us in the morning of 3 November 2017 because staff at the Supreme Court Registry inadvertently misinformed him that the hearing for the summary determination of his three appeals was fixed for 1.30 pm instead of 9.30 am on Friday 3 November 2017.
  2. But again, we are left to speculate as to what misapprehension of fact or law was purportedly committed by us when we dismissed Mr Serowa’s appeals on the morning of 3 November 2017. However, the intention behind the wording of Ground 5 is plain. Justice Shepherd acknowledged this when, sitting as a single judge of the Supreme Court, his Honour on 21 July 2020 granted leave to Mr Serowa to proceed with his slip rule applications despite certain misgivings on the part of his Honour. The ruling which was made by his Honour on 21 July 2020 states at para. 27:

Having considered Mr Serowa’s reasons for why he was not present in Court in the morning of 3 November 2017 for the hearing of the Registrar’s referral of Mr Serowa’s three appeals for summary determination, I am satisfied that Mr Serowa was not the cause of his absence that morning. He did not attend Court for the morning session because he had been misinformed by Registry staff that the hearing for the summary determination of his appeals was listed for the afternoon session of the Supreme Court which commenced at 1.30 pm. That information proved to be wrong. I accept that had Mr Serowa appeared before Justices Murray, Foulds and myself that morning, he would have drawn the Court’s attention to the prior stay orders .... Mr Serowa would also have been able to advance his reasons to this Court why his three appeals should be summarily dismissed, and why there had been no want of prosecution on his part because the stay orders had only just lapsed.


  1. Justice Shepherd’s ruling on 21 July 2020 on Mr Serowa’s leave application nevertheless came with this caveat at para. 28:

I acknowledge however, that as Mr Gor pointed out in his submissions, the effect of Justice David’s ruling delivered in WS No. 454 of 2003 on 31 October 2017 has largely rendered Mr Serowa’s appeals in SC No. 1 of 2007, SCA No. 3 of 2007 and SCA No. 70 of 2009 against interlocutory orders made in WS No. 454 of 2003 somewhat futile, except perhaps as to costs. Be that as it may, it is for Mr Serowa to decide whether he wishes to discontinue his three appeals or if he wishes to proceed with his slip applications. But if Mr Serowa does proceed with his slip applications, he does so in the knowledge that there may be little point in pursuing his appeals except as to costs.


  1. At the commencement of the substantive hearing of Mr Serowa’s three slip rule applications on 25 November 2021, on being questioned by Justice Shepherd, Mr Serowa agreed that had he appeared before this Court at the summary dismissal hearing on the morning of 3 November 2017, he would have been relying on his affidavits filed on 1 November 2017 and that he would have been seeking leave of this Court for the discontinuance of his three appeals. Mr Serowa agreed that he had changed his position after becoming aware that his three appeals had been summarily dismissed in his absence on 3 November 2017 and that this is what had prompted the filing of his three slip rule applications. Mr Serowa further agreed that in the event that Mr Guinn’s appeal in SCA No. 175 of 2017 were to be successful and the Supreme Court were to remit Mr Guinn’s defamation case against Mr Serowa back to the National Court for hearing, Mr Serowa will be bringing to the attention of the National Court the situation he will have been placed in, that is to say that Mr Serowa’s appeal in SCA No. 3 of 2007 against Justice Kandakasi’s order made in WS No. 454 of 2003 on 20 December 2006 will have been resurrected and that Mr Serowa would then be facing a trial on assessment of damages only, Mr Serowa’s liability having been determined by Justice Kandakasi’s orders. This is the contingent prejudice which Mr Serowa will sustain if Mr Guinn’s appeal in SCA No. 175 of 2017 is successful. If Mr Guinn’s appeal is dismissed by the Supreme Court, Mr Serowa will suffer no such prejudice.
  2. There can be no doubt that Mr Serowa was denied natural justice through no fault of his own when staff at the Supreme Court Registry erroneously informed him that the summary dismissal hearing in respect of his three appeals was fixed for 1.30 pm and not 9.30 am on 3 November 2017. This is the manifest injustice which Justice Shepherd accepted had occurred when granting leave to Mr Serowa on 21 July 2020 to proceed with his three slip rule applications, despite his Honour’s misgivings that those applications could be futile apart from the issue of costs.
  3. Mr Serowa was questioned by this Court on the return of Mr Serowa’s slip rule applications on 16 December 2020 and again on 23 November 2021 if he wished to still pursue his slip rule applications to substantive hearing. Mr Serowa was adamant on each occasion that he wanted to do so. He was therefore given full opportunity present full submissions on his slip rule applications at the substantive hearing conducted by us on 25 November 2021.
  4. Mr Serowa’s reason for pursuing his slip rule applications to substantive hearing is from his perspective understandable. He perceives substantial prejudice if Mr Guinn succeeds in his appeal in SCA No. 175 of 2017 and the Supreme Court sends Mr Guinn’s defamation case against Mr Serowa back to the National Court. In that contingent event, Mr Serowa considers he will be compelled to go for assessment of damages because Justice Kandakasi’s orders of 20 December 2006 in WS No. 454 of 2003 struck out his defence and entered judgment for Mr Guinn. Mr Serowa would then be aggrieved because his appeal against Justice Kandakasi’s orders was, as we know, summarily dismissed by this Court on 3 November 2017.
  5. However, Ground 5 of Mr Serowa’s applications must necessarily be seen in the context of the principles applicable to the slip rule in the Supreme Court enunciated in Marabe v Tomiape and the other case authorities we have referred to. We make the following findings in that regard:

(1) Mr Serowa was denied natural justice when he was, through no fault of his own, prevented from appearing before this Court on the morning of 3 November 2017 to contest the Registrar’s referral of his three appeals in SCA No. 1 of 2007, SCA No. 3 of 2007 and SCA No. 70 of 2009 for summary dismissal because of wrong information given to him by staff of the Supreme Court Registry.


(2) Mr Serowa’s misapprehension that the hearing on 3 November 2017 for the summary dismissal of his three appeals would be conducted by this Court at 1.30 pm that day and not 9.30 am was not of his own making.


(3) However, even if Mr Serowa had appeared before us on the morning of 3 November 2017, by Mr Serowa’s own admission he would have relied on his set of affidavits filed on 1 November 2017 which sought leave to discontinue his three appeals. By relying on those affidavits, this would not have affected the outcome of this Court’s decision to summarily dismiss all three of Mr Serowa’s appeals as those affidavits sought leave for Mr Serowa to discontinue his three appeals. This militates against any prejudice experienced by Mr Serowa’s denial of natural justice when he was prevented from appearing before this Court on 3 November 2017 because of misinformation conveyed to him by staff of the Supreme Court Registry.


(4) The real purpose of Mr Serowa’s three slip rule applications was to advance new arguments before this Court which Mr Serowa has conceded he would not have put to us had he appeared before this Court on the morning of 3 November 2017.


(5) Mr Serowa has not satisfied this Court that we made a clear and manifest error of fact or law on a critical issue when we exercised our discretion to summarily dismiss his three appeals on 3 November 2017. No such error is pleaded in Ground 5 and no such error has been demonstrated on the evidence or submissions made to us by Mr Serowa. This Court was entitled to rely on the materials which were before it on 3 November 2017, which included Mr Serowa’s own affidavits filed on 1 November 2017 that he was seeking leave to discontinue his three appeals.


(6) The principle that substantial public interest requires finality in litigation is directly applicable to the circumstances of the subject three appeals, the earliest two of which were current in the Supreme Court’s lists for almost eleven years as from 11 and 17 January 2007 and the third appeal for more than eight years from 24 June 2009 until their summary dismissal on 3 November 2017. These three appeals have had a long and convoluted history, as does the National Court case WS No. 454 of 2003 from which they derive, going back eighteen years. The case authorities we have referred to make it abundantly clear that the public interest in finality of civil litigation precludes all but the clearest slip error as a ground to reopen matters already determined by the Court. The mistake of the Court must, to use the wording in Wallbank v The State be little short of extraordinary. No such extraordinary slip error has been demonstrated by Ground 5 or indeed by any of the other grounds pleaded by Mr Serowa in his three slip rule applications. Given the need for finality in litigation, in our view there can be no justification in the particular circumstances of these three appeals for the slip rule procedure to be availed of in order to reopen and perpetuate the subject three appeals which were summarily dismissed on 3 November 2017.


  1. For these reasons we reject Ground 5 of Mr Serowa’s slip rule applications.

Conclusion


  1. As all five grounds of the three slip rule applications have been rejected, we dismiss all three applications. The applications were misconceived because they have not met the criteria for the slip rule to be invoked in the circumstances which prevailed before this Court at the summary dismissal hearing on 3 November 2017.

Costs


  1. The general rule is that costs follow the event, which is to say that ordinarily the losing party has to pay the costs of the successful party. The question of costs is discretionary. Several opportunities were given by this Court to Mr Serowa to carefully consider whether he should insist on his slip rule applications going to substantive hearing because his decision in that regard could affect, among others, the issue of costs. Mr Serowa chose to proceed. In the result this Court has found that the slip rule applications must be dismissed. Against this, we observe that counsel for Mr Guinn presented no submissions in answer to Mr Serowa’s substantive arguments before us but was content to leave it to this Court to determine all issues. We will therefore exercise our discretion as to costs by directing that each party is to pay its own costs of and incidental to the three slip rule applications.

Observations


  1. Before pronouncing final orders, we wish to make certain further observations. We consider that the proper course which Mr Serowa should have taken after the summary dismissal of his three appeals had taken place on 3 November 2017, when he first realised the potential consequences for him if Mr Guinn were to exercise his right to appeal the ruling and orders of Justice David on 31 October 2017 in WS No. 454 of 2003 and that case were to be remitted by the Supreme Court back to the National Court, was to apply to this Court under s.155(4) of the Constitution seeking a review of the decision of this Court on 3 November 2017 to summarily dismiss his three appeals.
  2. Mr Serowa was in fact informed in the afternoon of 3 November 2017 of this avenue under s.155(4) of the Constitution to challenge the summary dismissal of his three appeals. Mr Serowa deposes in para. 8 of his affidavits filed on 7 November 2017 in support of his three slip rule applications that in the afternoon of 3 November 2017 he enquired of the Associate to Justice Shepherd as to what had transpired before Justice Murray, Justice Foulds and Justice Shepherd that morning. Mr Serowa then states at para. 9 of his affidavits as follows:
    1. I told [the Associate] that I was wrongly informed by the Registry that my matters were to be heard at 1:30PM and I showed him the list give to me by the Registry. I told him to speak to Justice Shepherd, and I handed him the copies of my affidavit deposing the status of the Appeal. He then enquired with him. He came back and told me that Justice Shepherd will seek the views of Justice Murray and Justice Foulds and told me to wait at Court Room No. 10. After a while, he came back and told me that they can’t sit and change the orders and they told him to tell me that I can file an application under Section 185 of the Constitution and vary the orders.
  3. We consider that Mr Serowa’s reference in para. 9 of his affidavits filed on 7 November 2017 to s. 185 of the Constitution is either a mistake on his part or Mr Serowa did not properly understand what the Associate said to him. Section 185 is that provision of the Constitution which permits a court to give ad hoc directions to remedy any lack or inadequacy in matters of court practice or procedure. The Associate was in fact told to inform Mr Serowa that an application for review of this Court’s summary dismissal of his appeals might be possible under s.155(4) of the Constitution, not s.185. Section 155(4) is the constitutional provision which gives an unfettered jurisdiction to the Supreme Court to make such orders “as are necessary to do justice in the circumstances of a particular case”. The Supreme Court in Trawen v Kama determined that s.155(4) of the Constitution confers a review jurisdiction on the Supreme Court where the primary rights of parties require protection. The Court also held in Trawen v Kama to the effect that any application under s.155(4) can only be made before the same bench of the Supreme Court as constituted the Court that made the appellate decision sought to be reviewed.
    1. The purpose of s.155(4) of the Constitution was considered by Gavara-Nanu J in the context of a slip rule application in Tai v ANZ Banking Group (PNG) Ltd (2018) SC168. His Honour said at paras. 6 and 7:
      1. Section 155(4) of the Constitution does not confer primary jurisdictional power. Rather, it grants power to the courts to issue facilitative orders to protect and enforce an existing primary right conferred on a party by law. In exercising this power the courts are required to tailor their remedial processes to suit the particular circumstances of the case: Avia Aihi v. The State (No. 1) [1981] PNGLR 81; Peter Makeng v. Timbers (PNG) Ltd (2008) N3317 and Innovest Ltd v Hon. Patrick Pruaitch & The State (2014) N5949.

...

  1. It follows that s.155(4) can only be invoked in cases where there is an existing primary right of a party conferred by law that has to be protected and enforced in which case s.155(4) has to be pleaded together with a source granting the primary jurisdictional power. That source may be constitutional (for example where ss.57 and 58 have to be pleaded and relied upon in human right claims), statutory or common law such as breach of natural justice.
  2. If Mr Serowa had obtained proper legal advice soon after his three appeals were summarily dismissed, he would presumably have been independently advised to file an application for review under s.155(4) of the Constitution rather than his slip rule applications, which as we have now found were misconceived. However it is now too late for him to do so. A belated second attempt by Mr Serowa for this Court to reopen his three appeals would be seen as a “second bite of the cherry” and therefore an abuse of process by operation of the principle requiring finality in litigation.

86. We therefore leave it to Mr Serowa to inform the Supreme Court in Mr Guinn’s ongoing appeal in SCA No. 175 of 2017, yet to be heard, of the consequences Mr Serowa anticipates he would face, given that his own interlocutory appeals have been summarily dismissed, if Mr Guinn’s appeal were to be successful and if the case were to be remitted by the Supreme Court back to the National Court without the Supreme Court first acknowledging the situation which would prevail if the order made in WS No. 454 of 2003 on 20 December 2006 for the striking out of Mr Serowa’s defence and entry of judgment in favour of Mr Guinn with damages to be assessed were to stand.


Order


  1. The terms of the Order of this Court are as follows:

(1) The Appellant/Applicant’s three slip rule applications under Order 11 Rule 32 of the Supreme Court Rules 2012 are refused.


(2) The summary dismissals on 3 November 2017 of the Appellant/Applicant’s appeals in SCA No. 1 of 2007, SCA No. 2 of 2007 and SCA No. 70 of 2009 are confirmed.


(3) Each party is to bear its own costs of and incidental to the three slip rule applications.


Judgment accordingly.

________________________________________________________________

Appellant/Applicant: In person

Fiocco & Nutley Lawyers: Lawyers for the Respondent


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