State v Kalaut [2022] PGSC 45; SC2246 (2 June 2022)

SC2246

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 10 OF 2021


BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND:
DAVID MANNING -THE COMMISSIONER OF POLICE
Second Appellant

AND:
HON. BRYAN KRAMER -MINISTER FOR POLICE
Third Appellant

AND:
HON. SOROI EOI - MINISTER FOR PUBLIC SERVICES
Fourth Appellant

AND:
THE PUBLIC SERVICE COMMISSION
Fifth Appellant

AND:
THE NATIONAL EXECUTIVE COUNCIL
Sixth Appellant

AND:
SYLVESTER KALAUT
First Respondent

AND:
FRED YAKASA
Second Respondent

Waigani: Hartshorn J, Makail J, Kariko J
2022: 23^rd May, 2^nd June

SUPREME COURT – PRACTICE AND PROCEDURE – application for leave to make slip rule application – competency of application – whether in proper form – Order 11 Rule 32 Supreme Court Rules

SUPREME COURT – PRACTICE AND PROCEDURE – application for leave to make slip rule application – alleged slip in decision of Supreme Court to uphold appeal and quash decision of National Court upholding application for judicial review – alleged error in the decision to confirm second appellant as Commissioner of Police pursuant to contract of employment – slip alleged in respect of an order – whether slip rule application has strong chance of success

Facts:

The second appellant, David Manning, appealed the decision of the National Court that found his appointment as the Commissioner for Police to have been lawfully made but not his separate appointment as the Secretary for Police, yet both appointments were quashed and declared null and void. This Court upheld the appeal. The respondents in the appeal, apply for leave to make a slip rule application claiming the Court committed clear and glaring error when it referred to Mr Manning’s contract of employment in the Court’s order that confirmed Mr Manning’s appointment as the Commissioner for Police. The applicants argue that this Court committed a slip because the contract was not pleaded nor was it in evidence in the court proceedings, and the judgment on appeal makes no reference to it, yet it is referred to in the Order.

Held:

1. The application is dismissed as incompetent for non-compliance with the mandatory requirements of the Supreme Court Rules (Hartshorn J and Kariko J).
2. The application is without merit, misconceived, and is an attempt to rehash arguments from the appeal in the slip application.
3. The applicants have no strong chance of success in the slip application – another reason to have it dismissed.
4. The applicants shall pay the respondents’ costs on a full indemnity basis as the application is without merit, judicial time has been wasted and unnecessary costs have been incurred.
   

Cases Cited:

Richard Dennis Wallbank & Jeanette Minifie v. The State [1994] PNGLR 78
Rex Paki v. Motor Vehicle Insurance Ltd (2010) SC1015
Andrew Trawen & Anor v. Steven Pirika Kama (2010) SC1063
Ben Micah v. Rigo Lua & Ombudman Commission (2015) SC1455
Agiru v Kaiabe (2015) SC1412
The State v. Transferees (2016) SC1488
Rimbunan Hijau (PNG) Ltd v. Enei (2019) SC1859
The State & Ors v. Sylvester Kalaut & Fred Yakasa (2021) SC2179

Legislation:

Supreme Court Act
Supreme Court Rules

Counsel:

Mr. T. Mileng, for the First and Third to Sixth Appellants/Respondents
Mr. D. Wood and Mr. C. Joseph, for the Second Appellant/Respondent
The first respondent/applicant in person
Mr. D. Dotoana, for the Second Respondent/Applicant

2^nd June, 2022

1. HARTSHORN, J: This is a decision on a contested application for leave to file a slip rule application. It is made by the two respondents to the appeal.
   
2. I respectfully adopt as my own, the narration of my brother, Kariko J., as to the background of this matter and the application for leave to make a slip rule application.
   

Competency

Whether the application complies with Form 4 Supreme Court Rules

3. Order 13 Rule 15 Supreme Court Rules provides that amongst others, all applications shall be made in Form 4. In The State v. Transferees (2016) SC1488 (Sakora, Gavara Nanu, Ipang JJ), when considering an application for leave to make a slip rule application at [9] and [10], the Court stated:
   

“9. Filing of a slip rule application is regulated by Orders 11 r 32 and 13 r 15 of the Supreme Court Rules, thus the requirements under these rule(s) being mandatory, must be strictly complied with. The need to comply with the mandatory requirements of these rules, goes to the jurisdiction of the Court to hear the slip rule application. Thus, if the application does not comply with the requirements of these rules, the non-compliance renders the application incompetent and the Court would have no jurisdiction to hear the application. Very clearly, the slip rule application in this case cannot possibly succeed due to its incompetence and the Court lacks jurisdiction to hear it: Agiru v. Kaiabe [2015] PGSC2; SC 1412.

10. Order 11 r 32 of the Supreme Court Rules, grants power to the Court to hear a slip rule application as long as the application meets the requirements of the above mentioned rules viz; that it is competent. The need for a slip rule application to conform to Form 4 under Order 13 r 15, as stated earlier is a mandatory requirement and therefore it is a pivotal consideration on the issue of the competency of such an application. Therefore, even if an application was filed within 21 days as required under Order 11 r 32, if the application did not conform to Form 4, the application would be incompetent of the basis of want of form: Barawa Ltd v. Mamalau [2013] PGSC 50; SC1301 and National Capital Limited v. Loi Bakani, Governor, Bank of Papua New Guinea (2014) SC1392. In this case the application does not conform to Form 4. .....This is another reason why the slip rule application is incompetent.”

4. Form 4 provides amongst others, that there should be a paragraph entitled “Grounds” and that each particular ground by paragraph be specified. In this instance the application and amended application before the Court do not contain such a paragraph and there are no grounds specified. Consequently, as the application and amended application do not conform to Form 4 Supreme Court Rules, on the authority of the above judgments to which reference has been made, this Court does not have the jurisdiction to hear the application for leave. The application and amended application are therefore incompetent and should be dismissed.
   
5. Given this, it is not necessary to consider the application for leave further. I have however, considered the draft judgments of my brothers Makail J and Kariko J and I respectfully agree with the reasoning and conclusions contained therein.
   
6. MAKAIL, J: At the hearing an issue was raised by the Court in relation to the competency of the application with parties. The issue was whether the form adopted is in conformity with Form 4 of the Supreme Court Rules (“SCR”). However, I will not address it in my ruling. I will go straight to discuss the merits of the application.
   
7. Pursuant to an amended application filed 28^th March 2022, the applicants Mr Sylvester Kalaut and Mr Fred Yakasa seek leave of the Court to reopen the appeal and revisit our decision of 23^rd December 2021 pursuant to Order 11, rule 32 of the SCR.
   

Decision of Supreme Court

8. Each of us gave separate reasons for judgment but the net effect was we found an error in the judgment of the National Court to quash the decision of the sixth appellant to appoint Mr David Manning as Commissioner of Police. We upheld the appeal, quashed the decision of the National Court and confirmed Mr Manning to the position of the Office of Commissioner of Police pursuant to his contract of employment. I refer to The State & Ors v. Sylvester Kalaut & Fred Yakasa (2021) SC2179 for the full reasons.
   
9. The terms of the order are set out below:
   

“a) This appeal is upheld.

2. The orders made by Cannings J on 22^nd January 2021 in National Court proceeding OS(JR) No. 2 of 2020; Sylvester Kalaut and Fred Yakasa v. The State and Others are quashed.
   

100. The Second Appellant, Mr. David Manning is confirmed to the position of the Office of Commissioner of Police as per his contract of employment.
     

4. The respondents shall pay the costs of the appellants of and incidental to this appeal and of the said National Court proceeding on a party to party basis to be taxed if not agreed”.
   

Requirement for Leave

10. Order 11, rule 32 confers power on a judge or the Court that made the order from which the application for leave arises to grant leave to an applicant to make a slip rule application. In this case the application for leave is being made to the Court.
    
11. The purpose of a slip rule application is to correct a mistake or an error in the judgment. As the Supreme Court observed in Richard Dennis Wallbank & Jeanette Minifie v. The State [1994] PNGLR 78 at 101:
    

“There must be a discretionary power in the Court to correct its own mistake .........or that there has been an error in need of correction”.

12. The discretion must be exercised bearing in mind that “Public interest in the finality of litigation must preclude all but the clearest “slip” error as a ground to reopen” a case: Richard Dennis Wallbank case (supra) at 103.
    
13. The nature of a hearing under a slip rule application is neither to rehash arguments nor bring forth new grounds that should have been raised at the hearing. In other cases, leave will be granted if an applicant is able to demonstrate that the Court proceeded on a misapprehension of fact or law and that the misapprehension must not be of the applicant’s making: Andrew Trawen & Anor v. Steven Pirika Kama (2010) SC1063 and applied in Rimbuan Hijau (PNG) Limited v. Ina Enei (2019) SC1859.
    

Grounds for Leave

14. In this case Mr Kalaut and Mr Yakasa relied on one ground to demonstrate that we made a slip in our decision and leave should be granted to reopen the appeal and they be given the opportunity to revisit the decision. The rest of the grounds set out in the amended application were abandoned.
    
15. The remaining sole ground attacked term 3 (para. (c)) of the order (supra) and is pleaded in part as follows:
    

“The Supreme Court on 23 December 2021 in its final decision in SCM No. 10 of 2021 (consisting of Hartshorn J, Makail J, Kariko J) made a clearest, glaring or apparent slip or error manifested on the face of the record in making the order that; “The Second Appellant, Mr. David Manning is confirmed to the position of the Office of Commissioner of Police as per his contract of employment” when the Second Appellant’s Contract of Employment;

(a) Was never presented by the Appellants in the lower court (national court in OS (JR) No. 2 of 2020) as evidence to form the foundation of the above stated court order;

(b) Was never presented by the Appellants in the higher court (supreme court in SCM No. 10 of 2021) and without leave of the supreme court as fresh evidence to form the foundation of the above stated court order;

(c) was not the decision that was the subject of judicial review determination in both the National and Supreme Court (sic) respectively to form the foundation of the above stated court order;

(d) Had no nexus, foundation, merit or connection to the facts and reasoning of the three (3) learned judges in their final judgment in SCM No. 10 of 2021; in order for the Second Appellant’s Contract of Employment to form the foundation of the above stated court order;

(e) Was only consequential to the decision that was the subject of judicial determination in both the National and Supreme Court;

(f) Was not the decision that was made by the acting Governor General, conveyed by National Gazette No. G980 of 2019 dated 10 December 2019, initially appointing the Second Appellant to the position of Commissioner of Police and Secretary for Police and the Supreme Court made a slip or mistake by substituting the merit of that decision with the court’s opinion by confirming the appointment of the Second Appellant to the position of Commissioner of Police as per the Second Appellant’s Contract of Employment.

AND when the decision, conveyed by National Gazette No. G980 of 2019 dated 10 December 2019 appointing the Second Appellant to the position of Commissioner of Police and Secretary for the Department of Police was made on one instrument or decision; and it was;

(g) In-separable and to separate was to substitute the merit of the decision of the acting Governor General through National Gazette No. G980 of 2019 dated 10 December 2019 which is not permissible in judicial review”.

Alleged Slip – Absence of Contract of Employment

16. According to Mr Kalaut and supported by Mr Yakasa, the contract of employment of Mr Manning was not put in evidence in the National Court and Supreme Court and its validity was not one of the issues for consideration at the hearing of the appeal. Moreover, there was no application to adduce fresh evidence of the contract of employment or that leave was granted to adduce the contract of employment as fresh evidence for us to rely on it. For these reasons, parties did not make submissions in relation to whether it was valid and to which Mr Manning could be confirmed to the position of Commissioner of Police.
    
17. They argued we mistakenly assumed that the contract of employment was pleaded and in evidence and before determining whether it was valid, we proceeded to order that Mr Manning be confirmed to the position of the Office of Commissioner of Police based on it. This is where we slipped.
    
18. They also argued the validity of the contract of employment of Mr Manning was consequential to the decision by the sixth appellant to appoint Mr Manning as Commissioner of Police and we mistakenly assumed that it was valid when we made the subject order.
    
19. As the validity of the contract of employment was not one of the issues for consideration, they said, it explained why we gave no reasons in our decision for making the subject order. As a Court we had a duty to give reasons and when we gave no reasons, it supported the view that there were no good reasons for us to make the subject order and it is open to be set aside: Ben Micah v. Rigo Lua & Ombudsman Commission (2015) SC1455.
    
20. However, during submissions Mr Kalaut admitted that after the grant of leave for judicial review in the National Court, Mr Manning signed a contract of employment. He then said he was not able to produce a copy of it because he was not privy to it.
    
21. Mr Kalaut’s admission of the existence of Mr Manning’s contract reinforces the view that the validity of the contract of employment is consequential to the validity of the decision by the sixth appellant to appoint Mr Manning to the position of Commissioner of Police in the judicial review proceeding in the National Court. It renders his argument that the contract was not pleaded and was not in evidence before both Courts contradictory and superfluous. Furthermore, a reference in the decision of the sixth appellant that directed a contract of employment to be prepared for Mr Manning following his appointment as Commissioner of Police reinforces the view that it was consequential.
    
22. Moreover, Mr Kalaut and Mr Yakasa correctly conceded in their submissions that the validity of Mr Manning’s contract of employment is consequential to the principal issue of validity of the decision of the sixth appellant to appoint Mr Manning to the position of Commissioner of Police. By conceding, it renders their argument that there was no basis for us to make the subject order superfluous and we would be embarking on a purely academic exercise if we were to allow the matter to progress further. Such an exercise should not be promoted in the interest of scarcity of judicial time and resources: Rimbunan Hijau (PNG) Limited v. Ina Enei (supra).
    
23. As the validity of the appointment of Mr Manning as Commissioner of Police was the primary issue which we had determined, it was not necessary for us to give reasons for making the subject order which was really a consequential order, and I find the argument that we had a duty to give reasons for making that order misconceived. I dismiss it.
    

Conclusion

24. I conclude that Mr Kalaut and Mr Yakasa have failed to demonstrate a clear slip in our application of facts and law in our decision with regards to term 3 of the order to enliven the discretion of the Court in their favour. The amended application for leave is misconceived and leave is refused.
    

Costs

25. Mr Manning seeks costs on full indemnity basis because there is no merit in the application and that he has given notice of his intention to Mr Kalaut and Mr Yakasa to seek costs on solicitor/client basis in a letter dated 24^th January 2022.
    
26. I make this observation. Slip rule applications by dissatisfied parties have become frequent these days merely because parties believe they have been denied a fair hearing and they fail to give serious consideration to the merits of application itself. In Rimbunan Hijau (PNG) Limited v. Ina Enei (supra), the Supreme Court warned parties not to bring slip rule applications as a matter of course or else, they will be ordered to pay costs on a solicitor/client basis if they failed.
    
27. I agree with the Supreme Court in Rimbunan Hijau (PNG) Limited v. Ina Enei (supra). The application for leave was misconceived and should not have been brought. The appellants had to defend a misconceived application and incurred costs unnecessarily. It was also a waste of judicial time and resources. Mr Manning had forewarned Mr Kalaut and Mr Yakasa of his intention to seek costs on full indemnity basis while other appellants have not. However, the application was misconceived, and they have incurred costs unnecessarily. I will order Mr Kalaut and Mr Yakasa to pay the appellants’ costs on full indemnity basis, to be taxed, if not agreed.
    

Orders

28. The orders which I propose are:
    
    1. The amended application for leave to make a slip rule application filed 28^th March 2022 is refused.
       
    2. The applicants Mr Sylvester Kalaut and Mr Fred Yakasa pay the appellants’ costs on full indemnity basis, to be taxed, if not agreed.
       
29. KARIKO, J: This is a decision on an application filed pursuant to Order 11 Rule 32(3) of the Supreme Court Rules for leave to make a slip rule application.
    
30. The application arises from the judgment of this Court which is published as Independent State of Papua New Guinea v. Kalaut (2021) SC2179.
    

Brief Background

31. By gazettal notice dated 10 December 2019, the Governor-General advised of the appointment of David Manning as the Commissioner of Police and the Secretary for Police, based on the recommendations of the National Executive Council.
    
32. The respondents/applicants (the applicants), who were short-listed applicants for the positions, filed in the National Court for judicial review of the appointments.
    
33. On 22 January 2021, the primary judge found that Mr Manning’s appointment as Commissioner of Police was legally valid but not his appointment as the Secretary for Police. His Honour considered the illegality of the appointment as Secretary permeated the separate appointment as the Commissioner, and he quashed both appointments as null and void.
    
34. Mr Manning appealed the decision to this Court which upheld the appeal on 23 December 2022 and issued the following orders:
    • (a) This appeal is upheld.
    • (b) The orders made by Cannings J on 22^nd January 2021 in National Court proceeding OS(JR) No. 2 of 2020; Sylvester Kalaut and Fred Yakasa v. The State and Others are quashed.
    • (c) The Second Appellant, Mr. David Manning is confirmed to the position of the Office of Commissioner of Police as per his contract of employment.
    • (d) The respondents shall pay the costs of the appellants of and incidental to this appeal and of the said National Court proceeding on a party to party basis to be taxed if not agreed.

Application for leave

35. The application for leave to make a slip rule application was filed on 11 January 2022 and it raises three allegations of slip.
    
36. In an amended application filed 28 March 2022, two of the allegations were abandoned leaving one ground: that this court “made a clearest (sic), glaring or apparent slip or error manifested on the face of the record in making the order that ‘the Second Appellant, Mr David Manning is confirmed to the position of Commissioner of Police as per his contract of employment’.”
    

Competency of application

37. I have had the benefit of reading the draft judgement of my brother Hartshorn J, and I agree with his reasoning and conclusion that the present application for leave is incompetent and should be dismissed.
    
38. Although it is then not necessary to consider the merits of the application, I will nevertheless give a brief opinion on it.
    

Merits of application

39. It is settled law that for an application for leave to make a slip rule application to succeed, the court must be satisfied that:
    
    • (1) The applicant filed the application within 21 days after the order disposing the proceeding.
      
    • (2) The applicant has a strong chance of success in the slip rule application.
      

(Agiru v. Kaiabe (2015) SC1412)

40. The present application was filed within time so the only question to answer relates to the second requirement.
    
41. The alleged slip concerns the third order of the court and in particular the underlined phrase - The Second Appellant, Mr. David Manning is confirmed to the position of the Office of Commissioner of Police as per his contract of employment.
    
42. As noted earlier, the primary judge in the judicial review proceeding found that only the appointment of David Manning as the Commissioner of Police was lawfully made. His Honour however considered that it would be impractical and undesirable to declare that only the appointment as Secretary for the Department of Police was affected by error of law. His Honour viewed the illegality attending the appointment as Secretary for the Department of Police permeated the separate appointment as Commissioner for Police. Accordingly, his Honour quashed both appointments to the separate offices as null and void.
    
43. The fundamental issue in the appeal was whether the primary judge erred in declaring Mr Manning’s appointment as Commissioner of Police null and void after his Honour had found that the appointment was lawfully made.
    
44. The appeal was upheld upon the court deciding that the primary judge erred in law by failing to give reasons for why he decided the illegality of the appointment as Secretary permeated the separate appointment as Commissioner.
    
45. Further, Makail J and I expressed the view that by law, the position of Secretary for the Department of Police did not exist at the relevant time.
    
46. The arguments alleging the slip are essentially that the reference to Mr Manning’s contract of employment in the Order of the Court is a clear and glaring error by the Court because:
    
    • (1) Mr Manning’s contract of employment was not in evidence, and was not an issue, and was not pleaded nor argued in the judicial review and in the appeal; and
    • (2) The Court did not discuss the contract in its judgment and there were no reasons for decision justifying the inclusion of the contract in the Order.
      
47. The applicants have not taken issue with the order upholding the appeal, nor indeed the reasons for the judgment of the Court, except they submit that the reference to Mr Manning’s contract of employment in the third order taints the whole judgment for the reasons they advance.
    
48. The subject order is consequential upon the Court upholding the appeal. The applicants agree with this proposition. To my mind, the challenged phrase in no way affects the Court’s reasoning or judgment in the appeal.
    
49. Furthermore, there was evidence in both the Judicial review and the appeal that the Police Commissioner is required to enter into a contract of employment with the State. For example, the decision of the National Executive Council that recommended the appointment of Mr Manning contained a direction to the Acting Secretary for the Department of Personnel Management to prepare a contract of employment for Mr Manning.
    
50. By virtue of s 16(b) of the Supreme Court Act the Court may upon the hearing of a civil appeal, affirm, reverse or modify the appealed judgment. In the present matter the Court reversed and modified the judgment.
    
51. I view the submissions by the applicants to be without merit and seriously misconceived.
    
52. I am inclined to agree with the submission by counsel for Mr Manning that this application is really an attempt by the applicants to argue around a consequential order to rehash their arguments from the appeal in the slip application.
    
53. Based on the foregoing, I conclude that the applicants do not have a strong chance of success in the slip application, which is a further reason to dismiss this application for leave.

Costs

54. I note that Mr Manning’s lawyers forewarned the applicants that costs on an indemnity basis would be sought if the application is pursued.
    
55. Such order is appropriate “where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy” and has caused the other party to incur unnecessary costs; Rex Paki v. Motor Vehicle Insurance Ltd (2010) SC1015 at [28].
    
56. The leave application is without merit, has put the respondents to the application to unnecessary costs, and it has wasted judicial time. These factors justify costs on an indemnity basis. See Rimbunan Hijau (PNG) Ltd v. Enei (2019) SC1859 at [33].
    

Orders

57. I would make the following orders:
    
    • (1) The application for leave to make a slip rule application filed on 11 January 2022 is dismissed.
    • (2) The respondents/applicants shall pay the costs of the appellants/respondents of and incidental to the slip rule application on an indemnity basis, to be taxed if no agreed.
      

BY THE COURT: The Court makes the following Orders:

1. The application for leave to make a slip rule application filed 11^th January 2022 and the amended application for leave to make a slip rule application filed 28^th March 2022 are dismissed.
2. The respondents/applicants shall pay the costs of the appellants/respondents of and incidental to the said application and said amended application on a full indemnity basis, to be taxed, if not agreed.
   

________________________________________________________________

The Solicitor General: Lawyer for the First and Third to Sixth Appellants/Respondents

Ashurst Lawyers: Lawyers for the Second Appellant/Respondent

The first respondent/applicant in person

Dotaona Lawyers: Lawyers for the Second Respondent/Applicant