Kalinoe v Putupen [2023] PGSC 12; SC2356 (23 February 2023)

SC2356

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 50 OF 2006

BETWEEN:
LAWRENCE KALINOE
First Appellant

AND:
THE VICE CHANCELLOR
Second Appellant

AND:
THE UNIVERSITY OF PAPUA NEW GUINEA
Third Appellant

AND:

LYONS PUTUPEN
Respondent

Waigani: Salika CJ, Logan and Dingake JJ
2023: 21^st & 23^rd February

PRACTICE AND PROCEDURE – Application for directions in respect of proposed challenge to slip rule application refused by a single judge of the Supreme Court as a sequel to the dismissal of an application by the Supreme Court of an application by the respondent for the dismissal of an application for the dismissal for want of prosecution of an appeal against a judgement of the National Court – absence of any proven slip by the respondent – consequential futility in giving directions – application dismissed – Constitution, s 155(4) – Supreme Court Rules, Order 11, rule 9.

Facts:

1. On 5 May 2006, the respondent (applicant for directions) obtained from the National Court a judgment in default against the appellants (respondents to the application for directions) with damages to be assessed in respect of a proceeding (WS No 105 of 2004), commenced by him on 13 February 2004. In those proceedings he alleged that, in breach of contract, he was wrongfully dismissed from his then teaching appointment at the University of Papua New Guinea. The basis for the default judgment was satisfaction by the then motions judge that the present appellants had failed to allow Mr Putupen inspection of documents discovered by them in a list of documents and a related failure by the appellants to respond to a letter from Mr Putupen requesting inspection of those documents.
   
2. The appellants sought and, on 15 June 2006, obtained leave to appeal against that default judgment.
   
3. On 28 June 2006, the appellants initiated their appeal against the default judgment and related orders. Many and varied interlocutory applications and related orders followed thereafter, which the Court found unnecessary to detail in full.
   
4. On 25 February 2021, the Court (constituted by five judges, and apparently for reasons given orally) dismissed an application by the respondent (filed on 23 April 2018) for the dismissal of the appeal for want of prosecution. At that same time, the Court ordered that the appeal be heard at the March 2021 sittings of the Supreme Court.
   

5. In the result, the appeal was not heard on its merits in the Supreme Court’s March 2021 sittings. Instead, on 16 March 2021, the respondent filed what was termed a “slip rule application pursuant to Order 11, rule 32 of the Supreme Court Rules”. He alleged that, in dismissing his application on 25
February 2021, the Court had proceeded “on some misapprehended facts that

[he] had filed a number of misapprehended applications to delay the process”.

6. This slip rule application was heard and determined by a single judge, who was one of the judges who had constituted the Supreme Court which on 25 February 2021 had dismissed the respondent’s application. On 22 May 2021, the Court as constituted by that judge dismissed the respondent’s slip rule application, apparently for reasons given orally.

7. On 6 August 2021, the respondent filed an application by which he sought directions as to the mode of challenge in respect of the orders made by the single judge under the Constitution and related directions in respect of the procedure for such a challenge.

Held:

1. The application should be dismissed and the substantive appeal listed for hearing.
   
2. Assuming, without deciding, that the Court constituted as a Full Court, had power under s 155(4) of the Constitution to review the refusal by a single judge of the Court of a “slip rule” application, it may be accepted that the Full Court does have power to give such directions as may be necessary in order to facilitate the hearing and determination of such an application and that Order 11, rule 9 of the Supreme Court Rules is at least one source of such power to give directions.
   
3. Again assuming, without deciding, that the respondent’s slip rule application was dismissed without reasons being given either orally or in writing for that dismissal, the directions for which the respondent applied would only be given if he had an arguable prospect of succeeding on a fresh hearing of his slip rule application in the event that the order for its dismissal were set aside.
   
4. Having regard to the overall history of the interlocutory applications and orders up to the stage when the Supreme Court came to dismiss on 25 February 2021 the respondent’s application for the dismissal of the appeal for want of prosecution, the respondent had failed to demonstrate even arguably an incontestable error of fact in respect of the conclusion that he had filed a number of misapprehended applications with resultant delay.
   
5. There is no point in giving directions in respect of an application which, even assuming it invoked a jurisdiction possessed by the Supreme Court the exercise of which resulted in the hearing afresh of the slip rule application, if that rehearing could lead to no different result namely, the dismissal of that application.

Maino v Avei [2000] PNGLR 404 applied.

Cases Cited:
Papua New Guinean Cases

Application by David Lambu v Peter Ipatas and Electoral Commission [1999] PNGLR 634
Chan v Apelis (No. 2) and Anor [1999] PNGLR 187
Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission [2000] PNGLR 166
Maino v Avei [2000] PNGLR 404
Wallbank & Minifie v The State [1994] PNGLR 78

Overseas Cases

Autodesk Inc. v The Dyason (No. 2) [1993] HCA 6; 176 CLR 300

Legislation

The Constitution, s 155(4).
Supreme Court Rules, Order 11, rules 9 and 32.

Counsel:

Mr T Cooper, for the Appellants (Respondents to the application for directions) The respondent (applicant for directions) in person

23rd February, 2023

1. BY THE COURT: As long ago as 5 May 2006, Mr Lyons Putupen obtained from the National Court a judgment in default with damages to be assessed in respect of a proceeding (WS No 105 of 2004), commenced by him on 13 February 2004. In those proceedings he alleged that, in breach of contract, he was wrongfully dismissed from his then teaching appointment at the University of Papua New Guinea. The basis for the default judgment was satisfaction by the then motions judge that the present appellants had failed to allow Mr Putupen inspection of documents discovered by them in a list of documents and a related failure by the appellants to respond to a letter from Mr Putupen requesting inspection of those documents.
   
2. The appellants sought and, on 15 June 2006, obtained leave to appeal against that default judgment. On 28 June 2006, the appellants initiated their appeal against the default judgment and related orders.

Approaching 17 years later, that appeal has never been heard on its substantive merits.

3. It is not presently necessary to detail each of the many and varied interlocutory applications and related orders which have occurred since the institution of the appeal, only to refer to some of them.
   
4. On 25 February 2021, this Court (constituted by five judges, and apparently for reasons given orally) dismissed an application by Mr Putupen (filed on 23 April 2018) for the dismissal of the appeal for want of prosecution. At that same time, the Court ordered that the appeal be heard at the March 2021 sittings of the Supreme Court.
   
5. In the result, the appeal was not heard on its merits in the Supreme Court’s March 2021 sittings. Instead, on 16 March 2021, Mr Putupen filed what was termed a “slip rule application pursuant to Order 11, rule 32 of the Supreme Court Rules”. He alleged that, in dismissing his application on 25 February 2021, the Court had proceeded “on some misapprehended facts that [he] had filed a number of misapprehended applications to delay the process”.
   
6. This slip rule application was heard and determined by a single judge, who was one of the judges who had constituted the Supreme Court which on 25 February 2021 had dismissed Mr Putupen’s application. On 22 May 2021, the Court as constituted by that judge dismissed Mr Putupen’s slip rule application, apparently for reasons given orally. It is necessary to say “apparently” because Mr Putupen, on whom the relevant onus lies, has not obtained and filed for the purposes of the present application a transcript of the proceedings before the single judge on the hearing of his slip rule application.
   
7. On 6 August 2021, Mr Putupen filed an application by which, presently materially, he seeks the following orders:
   

1, For the Court Direction Orders pursuant to Order 11 Rule 9 of the Supreme Court Rules and section 155(4) of the Constitution to challenge the Court orders by an appropriate Court process to come up with a Court of competent jurisdiction to find that:

(a) The single quorum comprised of Justice David Cannings’ verbal refusal of the within Applicant/Respondent’s slip rule application filed on 16/03/21 on the basis that the Full Court Comprised of five (5) judges (Justice Cannings, Manuhu, Yagi, Thompson, Miviri JJJ) had considered all issues and refused the application to dismiss appeal for want of prosecution filed on 23/04/18 in the exercise of Court’s discretion on 25/02/21 without proper Court Ruling was injustice, harsh, oppressive and not called for under any democratic society like Papua New Guinea pursuant to sections 37, 41, 59 and 155(4) of the Constitution. [Sic]

8. Mr Putupen, who is a lawyer, appeared on his own behalf, as he has at earlier interlocutory stages. In responding to his application, the appellants appeared by counsel.
9. In support of the Court’s power to grant this relief and thus to make the related directions sought, Mr Putupen cited observations made in Maino v Avei [2000] PNGLR 404. In that case, it was held that the Supreme Court has power to correct a judgment it has made, where it is shown, there is a matter of substance integral to the judgment that is incorrect and that such error is based on a misapprehension of the true facts or of the law applicable in particular case. Reference was made in that case to Wallbank & Minifie v The State [1994] PNGLR 78, in which the Supreme Court confirmed that, while decisions of the Supreme Court, as the final court of appeal, are final, that does not preclude there being the possibility of reviewing a decision made or rehearing an issue affecting a decision, when the Court has good reason to consider that a judgment that it has made has been arrived at on a misapprehension as to the true facts or applicable law. Such jurisdiction of course arises only if it is clearly shown that there is a matter calling for review. A slip – such as a spelling or arithmetical mistake are straight forward examples, but to ensure there is no miscarriage of justice, the Court may look further. These observations in Autodesk Inc. v The Dyason (No. 2) [1993] HCA 6; 176 CLR 300, were cited with approval in Wallbank’s case, and again in Chan v Apelis (No. 2) and Anor [1999] PNGLR 187:
   

"As this court is the 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 judgement".

Those cases also make it clear that this is not an extension to the appeal system "the purpose is not to provide a back door method by which unsuccessful litigants can seek to reargue their case". There has to be a genuine error or misapprehension, one not occurring through failure of the parties to put their case adequately, see Application by David Lambu v Peter Ipatas and Electoral Commission [1999] PNGLR 634 and Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission [2000] PNGLR 166.

Each of the judges who constituted the Supreme Court in Maino v Avei applied these principles, although Injia J (as he then was) dissented as to their application in the circumstances.

10. Our understanding of the relevant principles is no different to that stated in Maino v Avei and in the other cases mentioned. Put shortly, and to use a colourful description which has commended itself to others, such an application is not a “back door” method by which a disappointed party may seek to re-agitate controversial issues of fact and law in respect of which that party did not enjoy success. In respect of a finding of fact, a “slip rule” applicant must do more than show that the finding was arguably mistaken. Such an applicant must prove that the finding was, incontestably, mistaken. Moreover, if the mistake could not possibly have affected the orders made, no setting aside of those orders will be warranted in any event.
    
11. We shall assume in Mr Putupen’s favour, without deciding, that this Court constituted as a Full Court, has power under s 155(4) of the Constitution to review the refusal by a single judge of the Court of a “slip rule” application. On that assumption, it may be accepted that the Full Court does have power to give such directions as may be necessary in order to facilitate the hearing and determination of such an application and that Order 11, rule 9 of the Supreme Court Rules is at least one source of such power to give directions.
    
12. We shall also assume, again without deciding and large though the assumption may be, given the want of supporting evidence, that Mr Putupen’s slip rule application was dismissed without reasons being given either orally or in writing for that dismissal. Even so, we would only give the directions requested if Mr Putupen had an arguable prospect of succeeding on a fresh hearing of his slip rule application in the event that the order for its dismissal were set aside.
    
13. However, having been taken by Mr Putupen through the litany of interlocutory applications and orders up to the stage when the Supreme Court came to dismiss on 25 February 2021 his application for the dismissal of the appeal for want of prosecution, we see no incontestable error of fact in a conclusion that he had filed a number of misapprehended applications with resultant delay. All that we see is a conclusion in that regard reasonably open to be reached and, further, an appeal which should, but for Mr Putupen’s slip rule application, have been heard in the March 2021 sittings of the Supreme Court.
    
14. There is no point in giving directions in respect of an application which, even assuming it invoked a jurisdiction possessed by the Supreme Court the exercise of which would result in the hearing afresh of the slip rule application, if that rehearing could lead to no different result namely, the dismissal of that application. Mr Putupen’s slip rule application was always misconceived.
    
15. What this appeal has needed for so very long, as the Court recognised by the order made on 25 February 2021, is a hearing on the merits. The Court is duty bound to afford such a hearing.
    
16. We consider ourselves obliged to add the following. Given the very long period of time which has elapsed since Mr Putupen was last employed by the University, and the fact that, even if the appeal were successful (and we expressly refrain from making any observation, one way or the other as to its prospects) all that would mean is that, some two decades after the alleged wrongful termination, there would have to be a trial on the merits in the National Court. Were the appeal not to succeed, there would have to be an assessment of damages in accordance with the default judgement. The parties can relieve the Court of the duty to hear the appeal, and afford themselves certainty and finality of outcome before the determination of the appeal by compromise, informed by a realistic assessment of prospects of success and, if successful damages and for a related offer of compromise to be made and considered.
    
17. As it is, the application for directions in paragraph 1(a) of the application filed on 6 August 2021 must be dismissed and orders made which will bring the appeal on for substantive hearing. Costs must follow the event of dismissal.

Orders

1. The application by the respondent for directions in paragraph 1(a) of the application filed on 6 August 2021 be dismissed.
2. The appeal be listed for hearing in the April 2023 sittings of the Supreme Court.
3. Subject to such supplementation by a supplementary appeal book as the Listings Judge may permit, the appeal be heard by reference to the Appeal Book filed on 28 March 2018.
4. In respect of the appeal and notwithstanding any earlier directions or filed submissions, the parties have leave to file and serve a supplementary outline of submissions of not more than 10 pages by not later than the following dates:
   • (a) the appellants – 17 March 2023;
   • (b) the respondent – 14 April 2023;
5. Neither party be permitted to make any further interlocutory application in respect of the appeal without the leave of the Listings Judge or, as the case may be, the Court as constituted for the purposes of the hearing of the appeal.
6. The appeal be adjourned for listing and, subject to this order, directions by the Listing Judge.
7. The respondent pay the appellants’ costs of and incidental to his application for directions in paragraph 1(a) of the application filed on 6 August 2021, to be taxed if not agreed.

________________________________________________________________
TL Cooper Lawyers: Lawyers for the Appellants