Kariko v Ngangan [2023] PGSC 34; SC2379 (20 April 2023)

SC2379

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 114 OF 2022

BETWEEN:

JACK KARIKO in his capacity as Secretary for National Judicial Staff Services (NJSS)
Appellant

AND:

DR KEN NGANGAN in his capacity as Secretary for Department of Finance
First Respondent

AND:

DEPARTMENT OF FINANCE
Second Respondent

Waigani: Dingake J.
2023: 23^rd February, 20^th April

DIRECTIONS

SUPREME COURT – practice and procedure – application by appellant seeking orders to file application for leave for slip rule in form 4 as there is no prescribed form under the Rules for applications for leave for slip rule application – there is no prescribed Specific Form for an Application for Leave to file Slip Rule Application under Order 11 Rule 32 (3) of the Supreme Court Rules - order granted to appellant to file application for leave in form 4

Counsel:

Mr. David Kulu, for the Appellant
No Appearance

20^th April, 2023

1. DINGAKE J: This is an urgent application for directions, brought in terms of Order 11 Rule 1 and Rule 9 of the Supreme Court Rules 2012, in which the Appellant/Applicant seeks inter alia, the following Orders:
   
   1. Directions pursuant to Order 11 Rule 1 Rule 9 of the Supreme Court (Miscellaneous Amendment) Rules 2022 that in the absence of a prescribed form for an Application for Leave to File Slip the Rule Application under Order 11 Rule 32 (3), Form 4 of the Supreme Court (Miscellaneous Amendment) Rules 2022 is the appropriate form to use to draft an Application for Leave Slip Rule Application.
      
   2. Orders that the Appellant Draft Application for Leave to File Slip Rule Application is in the correct form.
      
   100. The costs of and incidental to this application be costs in the cause.
        
   4. The time for the entry of these Orders be abridged to the time of settlement by the Registrar, which shall take place forthwith.
      
2. The application is supported by the Affidavit of Mr. Jack Kariko in his capacity as Secretary for National Judicial Staff Services (NJSS).
   
3. According to the Affidavit of Mr. Kariko, on 30^th March 2023, the Supreme Court delivered a Decision in proceedings SCA No. 114 of 2022. The decision in the above proceedings concerned implementation of the decision of the Judicial Council relating to approved salary increases for officers of NJSS for the years 2017 to 2022.
   
4. Mr. Kariko avers that the Supreme Court decision did not give any consideration to most of the Appellant’s submission. He further avers that the PNG Judiciary’s existence and functioning is supported by the National Judicial Staff Services under the National Judicial Staff Services Act 1987.
   
5. According to Mr. Kariko, the Supreme Court Decision will have an adverse effect on the functioning of the National Judiciary Services.
   
6. Mr. Kariko avers that the application is brought on urgency because the time for the Appellant to file an Application for Leave to File Slip Rule Application under Order 11 Rule 32 (3) of the Supreme Court Rules, expires today on the 20^th April 2023.
   
7. A perusal of the Supreme Court (Miscellaneous Amendment) Rules 2022 reveals that there is no prescribed Specific Form for an Application for Leave to file Slip Rule Application under Order 11 Rule 32 (3) of the Supreme Court Rules.
   
8. The Appellant/Applicant has, in view of the above, proceeded to draft the Leave to File a Slip Rule Application using Form 4 in the First Schedule of the Supreme Court (Miscellaneous Amendment) Rules 2022, which he prays the Court to confirm as the appropriate Form to use when making an application for leave to file a Slip Rule Application under Order 11 Rule 32 (3) of the National Court Rules.
   
9. On the evidence before me, for the reasons stated in Mr. Kariko’s affidavit, I am satisfied that this matter is urgent given that the deadline to file an Application for Leave to File a Slip Rule Application under Order 11 Rule 32 (3) of the National Court Rules, expires today, the 20^th April 2023.
   
10. I have considered Form 4 in the First Schedule of the Supreme Court (Miscellaneous Amendment) Rules 2022, whether it would be an appropriate Form to utilize for this particular application. Form 4 is the general form for Application for Directions. I see no reason why it cannot be utilized for the drafting or filing of the Leave Application for a Slip Rule Application.
    
11. In considering whether to grant the relief sought two factors came to mind: prejudice and the interest of justice. On the evidence it does not appear to me that granting the Appellant the relief sought would prejudice the Respondents. Further, given the nature of the issues at stake, raised by the application, it seems to me that the interests of justice require that such issues be fully ventilated.
    
12. In the result, I will grant the Orders as prayed in the Application for Directions (Doc No. 20) in the following terms:
    
    • (a) Pursuant to Order 11 Rule 1 & Rule 9 of the Supreme Court (Miscellaneous Amendment) Rules 2022, in the absence of a prescribed form for an Application for Leave to File Slip Rule Application under Order 11 Rule 32 (3), Form 4 of the Supreme Court (Miscellaneous Amendment) Rules 2022 is the appropriate form to use to draft an Application for Leave to File Slip Rule Application.
      
    • (b) The Appellant draft Application for Leave to File Slip Rule Application is the correct form.
      
    • (c) Costs of and incidental to this application be costs in the cause.
      
    • (d) The time for the entry of these Orders be abridged to the time of Settlement by the Registrar, which shall take place forthwith.

________________________________________________________________
Kulu Legal: Lawyers for the Appellants
Office of the Solicitor General: Lawyers for the First Respondents